T-1818-87
Attorney General of Canada on behalf of the
Minister of Employment and Immigration (Appli-
cant)
v.
Jonas Kwane Oti Nkrumah (Respondent)
INDEXED AS: CANADA (ATTORNEY GENERAL) V. NKRUMAH
Trial Division, Teitelbaum J.—Montréal, Septem-
ber 21; Ottawa, October 8, 1987.
Immigration — Deportation — Order of expulsion issued
— Immigration Appeal Board ordering Minister not to deport
until disposition of motion for new hearing to reexamine
request for redetermination of claim to Convention refugee
status — Board's jurisdiction limited to powers conferred on it
by enabling statute — No implied or inherent jurisdiction —
Continuing jurisdiction to allow reopening of hearing under
special circumstances not extending to suspension of deporta
tion order — Application to quash Board's order allowed.
The applicant seeks an order for certiorari quashing the
decision of the Immigration Appeal Board ordering the Minis
ter of Employment and Immigration not to deport the respon
dent until such time as the Board disposes of a motion for a
new hearing to reexamine the respondent's request for redeter-
mination of his claim to Convention refugee status. The issue is
whether the Board had jurisdiction to stay execution of the
deportation order.
Held, the application should be allowed.
The Immigration Appeal Board has no inherent or implied
jurisdiction. It has only those powers specifically granted to it
by its enabling statute, the Immigration Act, 1976.
The Board has jurisdiction to reopen a hearing in respect of
appeals made pursuant to sections 72 or 73 and in respect of
applications for redetermination made under section 70. This is
so, not because of an inherent jurisdiction, but because of a
continuing jurisdiction to allow the reopening of a hearing
under very special circumstances. However, it does not follow
that because the Board may be allowed to reconsider its
decision in certain special cases, that it has jurisdiction to order
the suspension of a valid order of deportation in matters
involving the redetermination of a claim to refugee status. The
Act gives the Minister jurisdiction to issue a deportation order.
The Board can only suspend such an order by virtue of para
graph 75(1)(c) where there is an appeal to it pursuant to
paragraph 72(1)(b) or 72(2)(d).
Subsection 65(2) of the Act does not give the Board the
power to issue an interim order to stop the respondent's depor-
tation. That provision confers on the Board jurisdiction only in
respect of matters mentioned therein. In the case at bar, the
Board has only to decide whether it will allow the respondent's
hearing to be reopened. It cannot assume that it has the
jurisdiction to prevent the execution of the deportation order.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 19(2)(d),
20(1), 45(1), 59 (as am. by S.C. 1986, c. 13, s. 1),
65(2), 70(1), 72(1)(b) (as am. by S.C. 1984, c. 21,
s. 81), (2)(d), 73, 75(1)(c).
CASES JUDICIALLY CONSIDERED
APPLIED:
Grillas v. Minister of Manpower and Immigration,
[1972] S.C.R. 577; Canadian Broadcasting Corporation
et al. v. Quebec Police Commission, [1979] 2 S.C.R. 618;
Tremblay c. Séguin, [1980] C.A. 15; Flores-Medina v.
Immigration App. Bd. (1986), 1 Imm. L.R. (2d) 293
(F.C.T.D.).
DISTINGUISHED:
Areti Tsantili (Iliopoulos) (1968), 6 I.A.C. 80 (I.A.B.).
CONSIDERED:
Gill v. Canada (Minister of Employment and Immigra
tion), [1987] 2 F.C. 425 (C.A.); New Brunswick Electric
Power Commission v. Maritime Electric Company Lim
ited, [1985] 2 F.C. 13 (C.A.); National Bank of Canada
v. Granda (1985), 60 N.R. 201 (F.C.A.).
COUNSEL:
J. LeVasseur for applicant.
M.-J. Beaudry for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Flynn, Rivard & Associates, Montréal, for
respondent.
The following are the reasons for order ren
dered in English by
TEITELBAUM J.: The applicant, the Attorney
General of Canada, brings forward the present
application [TRANSLATION] "to obtain an order to
issue a writ of certiorari setting aside the decision
of the Immigration Appeal Board dated August
19, 1987, on the ground that the said decision is in
error, without foundation and vitiated by an error
of law in that the Immigration Appeal Board did
not have the power to order a stay of execution of
the removal order".
To the present application is attached the
affidavit of Harry Langston, an agent of the
Department of Immigration, Appeals Section, with
one Exhibit, Exhibit A, a decision dated August
18, 1987 issued by the Immigration Appeal Board.
The respondent filed an affidavit in reply dated
September 17, 1987.
The facts do not seem to be in dispute. The
respondent arrived in Canada on June 30, 1986. A
subsection 20(1) (of the Immigration Act, 1976
[S.C. 1976-77, c. 52]) report was made alleging
that the respondent contravened paragraph
19(2)(d) of the Immigration Act, 1976 (Act).
Subsection 20(1) of the Act states:
20. (1) Where an immigration officer is of the opinion that
it would or may be contrary to this Act or the regulations to
grant admission to or otherwise let a person examined by him
come into Canada, he may detain or make an order to detain
the person and shall
(a) subject to subsection (2), in writing report that person to a
senior immigration officer; or
(b) allow that person to leave Canada forthwith.
Paragraph 19(2)(d) of the Act states:
19....
(2) No immigrant and, except as provided in subsection (3),
no visitor shall be granted admission if he is a member of any of
the following classes:
(d) persons who cannot or do not fulfil or comply with any
of the conditions or requirements of this Act or the regula
tions or any orders or directions lawfully made or given
under this Act or the regulations.
In virtue of the subsection 20(1) report, an
inquiry, on July 21, 1986, was commenced into the
respondent's status and adjourned when, during
this inquiry, the respondent claimed Convention
refugee status (subsection 45(1) of the Act):
45. (1) Where, at any time during an inquiry, the person
who is the subject of the inquiry claims that he is a Convention
refugee, the inquiry shall be continued and, if it is determined
that, but for the person's claim that he is a Convention refugee,
a removal order or a departure notice would be made or issued
with respect to that person, the inquiry shall be adjourned and
that person shall be examined under oath by a senior immigra
tion officer respecting his claim.
As required by subsection 45(1) of the Act, the
respondent was examined under oath on Septem-
ber 16, 1986. On January 15, 1987, the respondent
received the decision of the Minister of Employ
ment and Immigration that he was not considered
a Convention refugee. Because of this unfavour
able decision, the respondent, on January 21, 1987
applied to the Immigration Appeal Board (I.A.B.)
for a redetermination of his status as a refugee as
per subsection 70(1) of the Act.
On or about March 18, 1987, the respondent
received a notice of hearing from the I.A.B. advis
ing him that the hearing on his application for
redetermination is scheduled to be heard on April
21, 1987 at Complexe Guy-Favreau in Montréal,
Quebec.
The respondent claims that upon receiving the
notice of March 18, 1987 from the I.A.B. he called
his "former" attorney to tell him the date of his
hearing. Respondent was told by his "former"
attorney that he would ask the I.A.B. for an
adjournment of the hearing because of the possi
bility of an administrative review (paragraph 5,
respondent's affidavit). The notice of hearing was
brought to the office of respondent's "former"
attorney on March 19, 1987. On April 16, 1987,
the respondent was told by his "former" attorney
that his case was to be heard in June, I assume in
June 1987 (paragraph 7, respondent's affidavit).
Because respondent was told his case was
adjourned and that a new date had been set for his
hearing (June) he did not present himself before
the I.A.B. on April 21, 1987.
I am satisfied that any reasonable person should
be able to rely on what he is told by his attorney in
the present circumstances and that it was therefore
reasonable for the respondent not to appear before
the I.A.B. on April 21, 1987. It was reasonable for
respondent to believe that his attorney would
ensure that the hearing was adjourned. Much to
respondent's surprise, on April 24, 1987, he
received a letter from the I.A.B. stating that his
application had been heard on April 21, 1987 and
that the I.A.B. decided that he was not to be
considered as a Convention refugee. This decision
was made on April 21, 1987, the date of the
scheduled hearing that the respondent believed to
have been postponed (paragraph 10, Langston
affidavit, paragraph 9, respondent's affidavit).
From April 24, 1987 to May 15, 1987, the
respondent attempted to see his "former" attorney
but was unable to do so. On May 15, 1987, he was
told by his "former" attorney that he (the attor
ney) was going to verify his own adjournment book
to understand what had happened. On May 27,
1987, the respondent was informed by a repre
sentative of the Department of Immigration, by
telephone, that the inquiry that had commenced on
July 21, 1986 would be resumed. The inquiry did
in fact resume on June 4, 1987 but was immediate
ly adjourned in that respondent's new attorney was
absent. It was rescheduled for July 2, 1987, a date
acceptable to respondent's new attorney.
It seems that respondent's "former" attorney
was unable to give respondent "any reasonable
answer" as to why the April 21, 1987 hearing had
not been adjourned and on June 1, 1987, someone
in respondent's "former" attorney's office told him
his file was transferred to another attorney
(respondent's present attorney).
The respondent, on June 30, 1987, presented to
the Immigration Appeal Board a "motion to
reopen" his case. He is asking for a new hearing, a
[TRANSLATION] "motion for a new hearing to
redetermine the applicant's claim" (paragraph 13,
Langston affidavit, paragraph 18, respondent's
affidavit). On July 2, 1987, the inquiry was again
adjourned but, this time, peremptorily to July 14,
1987. In that the inquiry was adjourned peremp
torily to July 14, 1987, the respondent, on July 9,
1987 presented a [TRANSLATION] "motion to stay
the resumption of the inquiry and to abridge the
time for presenting the motion", to the Trial Divi
sion of the Federal Court of Canada.
The hearing of this application was before Mr.
Justice Pinard on July 13, 1987, who, after hearing
the parties, refused to issue a writ of prohibition.
The inquiry of respondent was thus continued and
resulted in an order of expulsion being issued.
Soon after the issuance of the expulsion order,
the respondent was notified, by letter, that he
should report at Mirabel Airport on August 21,
1987 in order to leave Canada.
Respondent, on July 15, 1987, presented a
motion to extend the delay to present a motion
under section 28 of the Federal Court Act [R.S.C.
1970 (2nd Supp.), c. 10] for the annulment of the
Immigration Appeal Board's decision of April 21,
1987. To my knowledge, this motion to extend the
delay submitted by the respondent has, as yet, not
been heard by the Federal Court of Appeal.
The I.A.B. held a hearing on the respondent's
"motion for a new hearing to redetermine the
applicant's claim" made on June 30, 1987, on the
18th day of August 1987 and decided the
following:
The 18th day of August, 1987.
J.P. Cardinal
Presiding Member
D. Angé
Member
E.A. Brown
Member
JONAS KWANE OTI NKRUMAH APPLICANT
THE MINISTER OF EMPLOYMENT AND IMMIGRATION RE
SPONDENT
Upon motion filed on the 30th day of June 1987, and having
come on for hearing on the 18th day of August 1987;
THIS BOARD ORDERS that the said motion be and the same is
hereby referred to the original panel seized with the application
for redetermination and adjourned to a date to be fixed by the
Registrar;
AND FURTHER ORDERS the Respondent not to deport the
applicant before the said motion is disposed of.
Signed this 19th day of August, 1987.
Sgd. "G. Palasse"
Registrar
Respondent is still waiting (on September 21,
1987), for the hearing on his motion before the
original panel of the I.A.B.
The present application by the Attorney General
of Canada only refers to the Immigration Appeal
Board's order "not to deport the applicant before
the said motion is disposed of".
The issue in the present case is to determine
whether the I.A.B. has the jurisdiction to make an
interim order not to deport an individual who is
under an order of expulsion until such time as the
I.A.B. hears and decides on a motion for a new
hearing to reexamine the respondent's request for
redetermination of his claim to Convention refugee
status.
The Attorney General of Canada does not allege
that the I.A.B. cannot decide to reopen the hearing
into the question.
I am satisfied that the order of expulsion pro
nounced by a senior immigration officer after the
completion of the inquiry into the respondent's
status on July 14, 1987 is valid. In paragraph 22 of
the respondent's affidavit, he speaks of the order
being issued on July 14, 1986. I am making the
assumption that this is a typing error.
As I have stated, the inquiry continued on July
14, 1987. The respondent attempted to obtain a
writ of prohibition to prevent his inquiry from
continuing. Mr. Justice Pinard on July 13, 1987,
refused to issue the writ of prohibition stating:
In view of the affidavits and the other documents in the record;
in view of the arguments made by counsel for the parties; in
view of the special nature of the case at bar; whereas the
applicant has failed to establish unfair treatment; whereas
further the applicant has failed to establish that any right or
freedom he is guaranteed by the Charter has been unduly
affected;
The application is dismissed without costs.
The Immigration Appeal Board (I.A.B.) came
into existence as a result of a statute of the Parlia
ment of Canada. The I.A.B. was created by sec
tion 59 of the Immigration Act, 1976 (Act) [as
am. by S.C. 1986, c. 13, s. 1].
59. (1) There is hereby established a board, to be called the
Immigration Appeal Board, that shall, in respect of appeals
made pursuant to sections 72, 73 and 79 and in respect of
applications for redetermination made pursuant to section 70,
have sole and exclusive jurisdiction to hear and determine all
questions of law and fact, including questions of jurisdiction,
that may arise in relation to the making of a removal order or
the refusal to approve an application for landing made by a
member of the family class.
(2) The Board shall consist of not fewer than seven and not
more than fifty members to be appointed by the Governor in
Council.
(3) Notwithstanding subsections 60(1) and (2) but subject
to subsection (4), not more than eighteen members may be
appointed for terms exceeding two years and a member
appointed for a term not exceeding two years is only eligible for
re-appointment for one term not exceeding two years.
(4) A member appointed for a term not exceeding two years
is eligible for re-appointment for one or more terms exceeding
two years if fewer than eighteen members are serving terms
exceeding two years.
In the present instance, an application pursuant
to section 70 of the Act was made by the respon
dent, it was denied and a motion to reopen the
hearing is presently pending before the Board.
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 application
to the Board for a redetermination of his claim that he is a
Convention refugee.
(2) Where an application is made to the Board pursuant to
subsection (1), the application shall be accompanied by a copy
of the transcript of the examination under oath referred to in
subsection 45(1) and shall contain or be accompanied by a
declaration of the applicant under oath setting out
(a) the nature of the basis of the application;
(b) a statement in reasonable detail of the facts on which the
application is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered at the hearing; and
(d) such other representations as the applicant deems rele
vant to the application.
In that the I.A.B. was created by statute, it has
no inherent jurisdiction. It only has those powers
specifically granted to it by the statute that creat
ed the I.A.B., that is, the Immigration Act, 1976.
Although it was the old law of immigration that
was in effect at the time, the decision of the
Supreme Court of Canada in the case of Grillas v.
Minister of Manpower and Immigration, [1972]
S.C.R. 577 is applicable. Mr. Justice Pigeon at
page 592 states:
The first question on the appeal to his Court is whether the
Board had jurisdiction to reopen the hearing of appellant's
appeal to the Board after having issued its written order
dismissing it and directing that appellant be deported.
In my opinion, this question should not be considered on the
basis of principles applicable to Courts having an inherent
jurisdiction. The Immigration Appeal Board has nothing but a
limited statutory jurisdiction. A defined part of governmental
administrative powers has been assigned to it, not by any means
the totality of such powers with respect to immigration. Thus,
there is no room for the application of any principle that some
remedy ought to be available when the statute does not provide
for an explicit remedy. If such is the situation, the correct
conclusion should be that the matter remains within the discre
tion of the proper governmental authorities. [Underlining is
mine.]
The same principle was enunciated in the cases
of Canadian Broadcasting Corporation et al. v.
Quebec Police Commission, [1979] 2 S.C.R. 618,
at page 639 and Tremblay c. Séguin, [1980] C.A.
15. These two cases involve police commissions in
the Province of Quebec and the powers of such
administrative tribunals.
In the case of Flores-Medina v. Immigration
App. Bd. and Das v. Immigration App. Bd.
(1986), 1 Imm. L.R. (2d) 293 (F.C.T.D.), Mr.
Justice Dubé, in speaking of the Immigration
Apeal Board states at pages 295-296:
It should be borne in mind that the Board is a statutory body
which can only exercise the powers specifically conferred in its
enabling Act. The Board has no jurisdiction to extend the
deadline for filing an application for redetermination: Holocek
v. Min. of Manpower & Immigration, Fed. C.A., Doc. No.
A-382-75, June 9, 1975; Ali v. Min. of Manpower & Immigra
tion, [1978] 2 F.C. 277, 82 D.L.R. (3d) 401, 20 N.R. 337 (Fed.
C.A.); Re Bashir and Immigration Appeal Bd., [1982] 1 F.C.
704, 126 D.L.R. (3d) 379 (Fed. T.D.). Even the Canadian
Charter of Rights and Freedoms, cited by counsel, cannot have
the effect of conferring this power on the Board. [Underlining
is mine.]
Although the respondent did not make the sub
mission that the I.A.B. has any powers other than
what is given to it by the statute that created the
Board, respondent believes that the I.A.B. has the
powers of a superior court in virtue of subsection
65(2) of the Act and thus can issue an interim
order to stop the deportation of the respondent.
Subsection 65(2) states:
65....
(2) The Board has, as regards the attendance, swearing and
examination of witnesses, the production and inspection of
documents, the enforcement of its orders and other matters
necessary or proper for the due exercise of its jurisdiction, all
such powers, rights and privileges as are vested in a superior
court of record and, without limiting the generality of the
foregoing, may
(a) issue a summons to any person requiring him to appear
at the time and place mentioned therein to testify to all
matters within his knowledge relative to a subject-matter
before the Board and to bring with him and produce any
document, book or paper that he has in his possession or
under his control relative to such subject-matter;
(b) administer oaths and examine any person on oath; and
(c) during a hearing, receive such additional evidence as it
may consider credible or trustworthy and necessary for deal
ing with the subject-matter before it.
In so far as subsection 65(2) of the Act is
concerned, I am satisfied that this subsection of
the Act only applies with regard to the procedure
that is to be followed by the I.A.B. The I.A.B. has
all such powers, rights and privileges as are vested
in a superior court of record in doing what is
mentioned in this subsection, for example, to issue
a summons to any person; it does not give the
I.A.B. other jurisdiction or power, right or privi
lege on matters not mentioned in the subsection.
Respondent submits the case of Areti Tsantili
(Iliopoulos) (1968), 6 I.A.C. 80 (I.A.B.) for the
principle that the I.A.B. has the jurisdiction to
reopen a hearing. This case must first be distin
guished from the present case in that the Tsantili
case involves a motion to reopen the hearing of an
appeal against an order of deportation while the
matter before the I.A.B. in the present case is a
request to reopen a hearing for redetermination of
a claim concerning Convention refugee status. In
the present case there is no question of an appeal.
I am satisfied that the I.A.B. has the jurisdiction
to reopen a hearing whether on a question of
appeal under section 72 or 73 of the Act or
whether it is a matter under section 70 of the Act.
This is so, not because of an inherent jurisdiction
to do so but because of a continuing jurisdiction to
allow the reopening of a hearing under very special
circumstances.
It does not follow that because the I.A.B. may
be allowed to reconsider its decisions in certain
special cases, it has the jurisdiction to order the
suspension of a valid order of deportation in mat
ters involving the redetermination of a claim of
refugee status.
The jurisdiction to issue a deportation order is
given by the Act to the Minister, not to the I.A.B.
The I.A.B. has no jurisdiction over such orders.
The I.A.B. can only suspend a deportation order in
virtue of paragraph 75(1)(c) of the Act when there
is an appeal to the Board in virtue of paragraph
72(1)(b) [as am. by S.C. 1984, c. 21, s. 81] or
paragraph 72(2)(d).
75. (1) The Board may dispose of an appeal made pursuant
to section 72
(c) in the case of an appeal pursuant to paragraph 72(1)(b)
or 72(2)(d), by directing that execution of the removal order
be stayed.
72. (1) Subject to subsection (3), where a removal order is
made against a permanent resident or against a person lawfully
in possession of a valid returning resident permit issued to him
pursuant to the regulations, that person may appeal to the
Board on either or both of the following grounds, namely,
(b) on the ground that, having regard to all the circum
stances of the case, the person should not be removed from
Canada.
(2) Where a removal order is made against a person who
(d) on the ground that, having regard to the existence of
compassionate or humanitarian considerations, the person
should not be removed from Canada.
The case of Gill v. Canada (Minister of
Employment and Immigration), [1987] 2 F.C. 425
(C.A.), only stands for the principle that the
I.A.B. may, when a question of natural justice is
involved, allow for the reopening of a hearing in
order to enable an applicant to be heard. It does
not go any further. It does not infer that as a result
of having a continuing jurisdiction in a matter
after a decision has been made, it can also order
the suspension of a valid order of expulsion which
was never an issue before it.
Mr. Justice MacGuigan states at pages 429-430:
Clearly, a tribunal's power of rehearing is to be implied in such
circumstances. It accordingly appears to us that the Immigra
tion Act, 1976 must be interpreted to allow reconsideration by
the Board of its decisions, at least where it subsequently
recognizes that it has failed in natural justice.
Counsel for respondent submits the case of New
Brunswick Electric Power Commission v. Mari
time Electric Company Limited, [1985] 2 F.C. 13
(C.A.), as stating the principle that if the Federal
Court of Appeal is the only Court to which a
section 28 [Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10] application can be made and that it
therefore has jurisdiction in certain matters by
implication, that is, the Federal Court of Appeal
has the power to stay the execution of decisions
which it is asked to review, then the I.A.B., by
implication, can stay the execution of the deporta
tion order until such time as it decides on the
respondent's application presently before it as the
I.A.B. is the only body that can decide the motion.
Mr. Justice Stone, at page 27 quotes Mr. Justice
Pratte in the case of National Bank of Canada v.
Granda (1985), 60 N.R. 201 (F.C.A.), at page
202:
What I have just said should not be taken to mean that the
Court of Appeal has, with respect to decisions of federal
tribunals which are the subject of applications to set aside
under s. 28, the same power to order stays of execution as the
Trial Division with respect to decisions of the court.
The only powers which the court has regarding decisions
which are the subject of applications to set aside under s. 28 are
those conferred on it by ss. 28 and 52(d) of the Federal Court
Act. It is clear that those provisions do not expressly confer on
the court a power to stay the execution of decisions which it is
asked to review. However, it could be argued that Parliament
has conferred this power on the court by implication in so far as
the existence and exercise of the power are necessary for the
court to fully exercise the jurisdiction expressly conferred on it
by s. 28. In my opinion, this is the only possible source of any
power the Court of Appeal may have to order a stay in the
execution of a decision which is the subject of an appeal under
s. 28. It follows logically that, if the court can order a stay in
the execution of such decisions, it can only do so in the rare
cases in which the exercise of this power is necessary to allow it
to exercise the jurisdiction conferred on it by s. 28.
With respect for this submission, I cannot agree
that by implication the I.A.B. acquired the juris
diction to stay the execution of a valid order of
deportation while it considers whether or not to
reopen a hearing upon a motion made by the
respondent. I am satisfied that the I.A.B. cannot
acquire any jurisdiction by implication. It can only
have jurisdiction over matters given to it by the
statute creating the Board.
There is nowhere to be found any implied or
inherent jurisdiction in a federal government
administrative tribunal such as the I.A.B. Its juris
diction is only what is given to it.
The I.A.B. only has to decide, in the present
case, whether or not it will allow respondent's
hearing to be reopened. The issue of the deporta
tion is not before it to decide. It therefore cannot
assume that it has the jurisdiction to prevent the
execution of the order of deportation.
The present application is allowed and the order
of the Immigration Appeal Board dated August
18, 1987 not to deport Jonas Kwane Oti Nkrumah
is set aside without costs.
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.