A-249-78
Ibrahima Garba (Applicant)
v.
Suzanne Lajeunesse (Respondent)
and
Deputy Attorney General of Canada (Mis - en-
cause)
Court of Appeal, Pratte and Le Damn JJ. and Hyde
D.J.—Montreal, September 19; Ottawa, Novem-
ber 15, 1978.
Judicial review — Immigration — Adjudicator refusing to
reopen inquiry to consider further evidence — Refusal based
on fact that proposed evidence available at time of inquiry, but
not adduced — Whether or not reasons relied on by Adjudica
tor sufficient in law — Immigration Act, 1976, S.C. 1976-77,
c. 52. s. 35(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.).
c. 10, s. 28.
This is a section 28 application against the decision of an
Adjudicator under the Immigration Act, 1976 refusing to
reopen the hearing in which she ordered the exclusion of
applicant. The Adjudicator refused to exercise her discretion to
reopen because the evidence applicant sought to introduce was
available before the inquiry and not produced merely because
the applicant considered the evidence submitted to be suffi
cient. The only issue is whether the reasons relied on by the
Adjudicator in her decision were sufficient in law—did the
Adjudicator base her decision on irrelevant considerations or
did she fail to take into consideration facts which ought to have
been considered?
Held, the application is dismissed.
Per Pratte J.: The chief considerations that should ordinarily
influence the exercise of power are the weight and relevance of
the new evidence. An inquiry should not be reopened to hear
evidence that is incredible or relates to a fact the existence of
which cannot affect the outcome of the case, or to allow the
presentation of evidence the weight or relevance of which is
unknown. The fact that the new evidence was not recently
uncovered and could have been presented at the inquiry is not,
of itself and without regard to the circumstances, justification
to refuse to reopen an inquiry in every case. The Adjudicator
did not act unlawfully in refusing to reopen the inquiry. There
is no apparent reason that the evidence offered, which related
directly to facts raised at the inquiry, could not have been
presented at the time. Further, the exact nature of the evidence
remained unexplained.
Per Le Damn J.: The words "additional evidence or testimo
ny" in section 35 of the Immigration Act, 1976, simply mean
evidence or testimony that was not adduced or elicited at the
inquiry. Notwithstanding this construction of section 35, the
fact that such evidence or testimony was available and could
have been adduced or elicited during an inquiry is a relevant
consideration for exercising the discretion to refuse to reopen
the inquiry.
APPLICATION for judicial review.
COUNSEL:
M. Chénard for applicant.
S. Marcoux-Paquette for respondent and
mis -en-cause.
SOLICITORS:
Marc Chénard, Montreal, for applicant.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This section 28 application is against
the decision of an Adjudicator under the Immi
gration Act, 1976, S.C. 1976-77, c. 52, refusing to
reopen the hearing in which she ordered the exclu
sion of applicant.
Applicant comes from Niger. He was admitted
to Canada as a non-immigrant visitor on February
11, 1977. When his non-immigrant status ended
on January 24, 1978, he reported to an immigra
tion officer in accordance with section 7(3) of the
Immigration Act, R.S.C. 1970, c. I-2, then in
effect, and asked to be authorized to remain here
as a non-immigrant student. The immigration offi
cer concluded that applicant did not meet the
requirements of section 35 of the Regulations,
SOR/67-434, specifying the conditions on which
an alien may be admitted to the country as a
student. On March 29, accordingly, the officer
prepared a report under section 22 in which he
expressed the opinion that applicant did not meet
the requirements of the Regulations, inter alia
because he did not have adequate financial
resources to meet his needs during the period for
which he wished to study in the country. Before an
inquiry was held pursuant to this report, the 1952
Immigration Act was repealed and the Immigra
tion Act, 1976, came into effect. In accordance
with the terms of section 126(c) of the new Act,'
the inquiry to be made concerning applicant was
held before an Adjudicator in accordance with the
latter Act. This inquiry was held on May 3 and 9.
Applicant, who had been told of it several days
earlier, and had been sent the report prepared
under section 22, attended with his counsel. When
he was questioned as to his financial resources, he
produced a letter from a caisse populaire stating
that he had $923 to his credit, and stated that his
parents, resident in Niger, sent him money quite
regularly; finally, he added, without giving further
details, that he could rely on financial assistance
from a girl in Quebec City to whom he was
engaged. The Adjudicator found that the sum of
$923 was insufficient to enable applicant to pro
vide for his needs during a period of more than
eight months and, in view of the vagueness and
lack of corroboration of his testimony on the
assistance he could expect to receive from his
parents and his fiancée, the Adjudicator expressed
the opinion that applicant did not meet the
requirements of the Regulations, and therefore
ordered his exclusion.
The decision was rendered on May 9.
On May 11, applicant and his counsel submitted
to the Adjudicator an application for the inquiry to
be reopened, which read as follows:
[TRANSLATION] 1. After a hearing, applicant was informed of
a decision of exclusion.
2. The reason for the decision dealt with a lack of financial
resources.
3. Apart from an explanation by the special inquiry officer
after the decision of exclusion, applicant was not told earlier of
the standards for financial self-sufficiency. He only knew that
he had to have financial resources, and believed that the sum of
nine hundred dollars ($900), though not very much, was ade
quate for a period of six (6) to eight (8) months.
4. At the suggestion of his counsel, applicant did not produce a
document in his possession stating that a certain individual
could sponsor him if necessary.
5. Applicant's family—especially his father—are solvent, able
and willing to provide applicant with sufficient funds for him to
' 126. For greater certainty,
(c) when a report concerning a person has been made under
section 22 of the Immigration Act, as it read before it was
repealed by subsection 128(1) of this Act, and a further
examination or an inquiry, as the case may be, has not been
held concerning that person pursuant to that Act, the report
shall be deemed to have been made to a senior immigration
officer pursuant to paragraph 20(1)(a) of this Act.
lead the normal life of a student. Applicant's country of origin
has no objection to the money being transferred, and a docu
ment to this effect is filed herewith.
6. Applicant is completing a course of study, and his departure
would cause irreparable injury.
7. Applicant is convinced that he has not presented a complete
argument, which he is in a position to provide.
MAY IT PLEASE YOU:
To reopen the inquiry on such conditions as you see fit.
On May 16, the Adjudicator wrote applicant to
tell him of her decision not to reopen the inquiry.
In this letter, the Adjudicator stated the reasons
for her decision as follows:
[TRANSLATION] I have carefully examined the reasons pre
sented in your application. I have decided not to reopen the
inquiry since there is every reason to believe that the items of
evidence you wish to bring to my attention, which are referred
to in paragraphs 4 and 5 of your application, were available at
the time of inquiry, or at least could have been obtained before
the inquiry, and you should have taken the necessary steps to
produce them at the inquiry. The letter mentioned in paragraph
4 of your application was already in your possession at the time
of the inquiry. With regard to the document referred to in
paragraph 5, you have been in possession of the report prepared
under section 22 of the 1952 Immigration Act since April 6,
1978, whereas the inquiry was held on May 3 and 9, 1978, and
furthermore, there is no indication in your application that you
were unable to obtain this evidence before the inquiry was held.
On the contrary, your application to reopen the inquiry
clearly indicates that the only reason you did not produce these
items of evidence at the inquiry was that in your opinion the
bank certificate introduced as supporting Exhibit P-4 was
sufficient.
This is the decision from which applicant is
appealing.
Section 35(1) of the Immigration Act, 1976
gives an Adjudicator the power to reopen an
inquiry:
35. (1) Subject to the regulations 2 , an inquiry by an
adjudicator may be reopened at any time by that adjudicator or
by any other adjudicator for the hearing and receiving of any
additional evidence or testimony and the adjudicator who hears
and receives such evidence or testimony may confirm, amend or
reverse any decision previously given by an adjudicator.
2 The only provision of the Regulations on this matter is
contained in section 39:
39. An inquiry may be reopened by an adjudicator pursu
ant to subsection 35(1) of the Act at the written request or
with the written permission of the person concerned or where
the decision made at the inquiry will be amended to the
benefit of the person concerned.
This power is discretionary, and the only question
raised by this case is whether the reasons relied on
by the Adjudicator in her decision were sufficient
in law. In other words, did the Adjudicator base
her decision on irrelevant considerations, or did
she fail to take into consideration facts which
ought to have been considered?
In trying to answer this question, Mrs. Paquette
argued that section 35(1) did not authorize an
Adjudicator to reopen an inquiry merely to hear
evidence available since the start of the inquiry.
This is an incorrect interpretation of section 35(1):
the power conferred on the Adjudicator is not
limited in this manner. The Adjudicator may
reopen an inquiry even if the evidence which a
party seeks to present could have been presented at
the inquiry. I would add that, in my opinion, the
fact that evidence is or is not newly available is not
the most important matter to be considered by an
Adjudicator in exercising the power conferred on
him by section 35. To the extent that it is possible
to generalize in such a matter, it seems to me that
the chief considerations that should ordinarily
influence the exercise of this power are the weight
and the relevance of the new evidence. Thus, an
inquiry should not be reopened to hear evidence
that is incredible or which relates to a fact the
existence of which cannot affect the outcome of
the case. 3 The fact that the new evidence was not
recently uncovered, and could have been presented
at the inquiry, does not appear to me, of itself and
without regard to the circumstances, to justify a
refusal in every case to reopen an inquiry. Many
inquiries under the Immigration Act are, and have
to be, held quickly, under such circumstances that
the persons on whom they are made cannot always
be blamed for failing to produce evidence which, in
theory, was available to them. Account must be
taken of this, while at the same time bearing in
mind the abuses that might result if, in exercising
the power conferred under section 35, no consider
ation were given to the deliberate refusal of a
party to produce evidence at an inquiry.
3 Nor should an inquiry be reopened to allow the presentation
of evidence the weight or relevance of which is unknown;
accordingly, in my view, anyone seeking to have an inquiry
reopened should ordinarily provide details of the new evidence
he wished to introduce, so that the Adjudicator is in a position
to form an opinion on these two points.
In the circumstances disclosed by the record, I
do not believe the Adjudicator acted unlawfully in
refusing to reopen the inquiry. The inquiry was a
very simple one, and applicant had been advised of
it several days in advance. Before the decision was
handed down, the inquiry was adjourned from
May 9 to 11, thus giving applicant and his counsel
time for further reflection. Furthermore, the evi
dence offered, the exact nature of which was not
explained, related to facts which had been raised
directly at the inquiry, and which could not have
been forgotten either by applicant or his counsel.
There is no reason to think that this evidence could
not have been presented at that time. In these
circumstances, it could be concluded that the fail
ure to present this evidence at the inquiry was the
result of a deliberate decision or gross negligence,
and in my opinion this is a sufficient legal basis for
the decision a quo.
I would therefore dismiss this application to set
aside.
Before finishing with this case, I should make
another observation. I have already stated that the
inquiry involving applicant was held in accordance
with the procedure established by the new Immi
gration Act, 1976, pursuant to a report prepared
under section 22 of the old Act. There is no
problem with that, since section 126(c) of the new
Act provides that the report made on an applicant
shall be "deemed to have been made to a senior
immigration officer pursuant to paragraph
20(1)(a) of this Act". However, the Adjudicator
made the exclusion of applicant not because he
was not eligible under the new Act, but because he
did not meet the regulatory provisions, which
ceased to exist after April 10, 1978. This was
improper, in my opinion. I consider that after the
Immigration Act, 1976 came into effect, the
admissibility of persons seeking entry to Canada
should be determined in accordance with this Act
and the Regulations adopted pursuant to it. I say
this to avoid appearing to approve tacitly a deci
sion which I disapprove. In the case at bar, this
error cannot benefit applicant who, under section
10 of the new Act and sections 15, 16 and 17 of
the new Regulations, cannot be admitted to
Canada as a student.
HYDE D.J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
LE DAIN J.: I agree that the application should
be dismissed for the reasons given by my brother
Pratte. In my opinion the words "additional evi
dence or testimony" in section 35 of the Immigra
tion Act, 1976, simply mean evidence or testimony
that was not adduced or elicited at the inquiry. I
should like to make it clear, however, that notwith
standing this construction of section 35 it is my
view that the fact such evidence or testimony was
available and could have been adduced or elicited
during an inquiry is a relevant consideration for
exercising the discretion to refuse to reopen the
inquiry.
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.