A-227-79
Osama Abdel Baky (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and Smith
D.J.—Vancouver, October 23 and 25, 1979.
Judicial review — Immigration — Application to review
and set aside Immigration Appeal Board's decision dismissing
applicant's motion to reopen his appeal of deportation order
made against him — At a reopened hearing, applicant pro
posed to bring expert witnesses to testify as to the serious
situation facing him, because of his failure to meet military
obligations in his homeland, if he were to return there —
Board's statement, that it had never and would not exercise its
equitable jurisdiction because of such evidence, was a failure
to exercise its jurisdiction amounting to a complete denial of
jurisdiction — Application granted — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
P. Rankin for applicant.
H. Wruck for respondent.
SOLICITORS:
Rankin, Stone & McMurray, Vancouver, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Immigration
Appeal Board dated October 26, 1978, dismissing
the applicant's motion to reopen his appeal of the
deportation order made against him on December
5, 1974. At such a reopened hearing the applicant
would propose to bring expert witnesses before the
Board to testify with respect to the seriousness of
the situation in which the applicant would find
himself if he were to return to Egypt, his native
country. The affidavit evidence filed in support of
the motion to reopen indicates that the applicant
deserted the Egyptian Army in December 1967 in
active service while in combat and indicates fur
ther that there has been no amnesty for deserters
and that the punishment for desertion would be
very severe including the possibility of execution.
In refusing the motion to reopen, the majority
reasons for the Board deal with this proposed new
evidence as follows—
Whether because Baky is a deserter or a draft-dodger, he is
in difficulty with the authorities in Egypt as a result of his
conduct relative to his responsibilities as a citizen of that
country. The expert witnesses would give evidence with respect
to the degree of that difficulty. This Board has never found that
having to face the consequences of failure to meet one's obliga
tions as a citizen of one's own country is by itself a basis for
admission to Canada and would not so find in this case.
In our view, the Board, on a motion of this kind,
is required to consider whether the proposed new
evidence, if proven and accepted by the Board, is
of sufficient import to persuade the Board to
reconsider its original decision. In making that
decision, the Board must ask itself the following
questions—(1) whether, by present-day Canadian
standards, there exists compassionate or humani
tarian considerations, and (2) whether such con
siderations warrant the granting of special relief
under the provisions of section 15 of the Immigra
tion Appeal Board Act, R.S.C. 1970, c. 1-3'.
It is our further view that the Board, by virtue
of the passage quoted supra, has foreclosed the
possibility of such drastic treatment, as is set out
in the affidavit material filed herein, ever being
sufficient to warrant the Board's exercise of its
equitable jurisdiction. In stating flatly that the
Board never has and would not, in this case,
exercise its equitable jurisdiction because of such
evidence, it has, in our view, failed to exercise its
jurisdiction under the statute and such failure
amounts to a complete denial of the Board's
jurisdiction.
' Compare Toan Cong Vu v. Minister of Manpower and
Immigration [1973] F.C. 529.
Accordingly, I would allow the section 28
application, set aside the decision of the Immigra
tion Appeal Board dated October 26, 1978 and
refer the matter back to the Board for reconsidera
tion of the applicant's motion to reopen the appeal
in a manner not inconsistent with these reasons.
* *
RYAN J.: I concur.
• * *
SMITH D.J.: I concur.
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.