Date: 20061213
Docket: IMM-1552-06
Citation: 2006
FC 1485
Ottawa, Ontario, December
13, 2006
PRESENT: The Honourable Mr. Justice Blanchard
BETWEEN:
ELUZUR
RUMPLER
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
1. Introduction
[1]
The Applicant
seeks judicial review of the February l0, 2006 decision of the Immigration Appeal
Division of the Immigration and Refugee Board (the Appeal Division) wherein the
Appeal Division decided it did not have jurisdiction to extend time to file an
appeal from a removal order issued at an examination pursuant to section 63(3)
of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the IRPA).
2. Factual Background
[2]
The Applicant is a
citizen of the United
States and became a
permanent resident of Canada in 1979, when he was 5 years old. He
is an ultra-orthodox Jew and understands little English and no French. His
first languages are Yiddish and Hebrew.
[3]
The Applicant has
lived in Canada since his arrival here, with the exception of almost two years
spent in Israel between 2001 and 2003 working for a
Canadian religious organisation.
[4]
He returned from Israel on Friday September 16, 2005, at which time an
immigration officer (the officer) determined that he did not meet the residency
requirements of section 28 of IRPA and as a result the officer issued a Removal
Order against him. The Order was in French and did not specify the time within
which to appeal.
[5]
The Applicant
alleges the officer spoke little English, consulted a translating dictionary
frequently, and refused his request for the services of a translator. As a
result the Applicant claims that he had difficulty understanding what was
taking place. He alleges he understood that, in order to leave Québec City for Montréal, he had to sign a document which gave him 60 days to
appeal. Moreover, the Applicant alleges that he signed without taking the time
to understand the document because of the approach of the Jewish Sabbath. His
religious beliefs prohibit him from traveling after sundown on Fridays.
[6]
The deadline to
file an appeal expired on October 17, 2005.
[7]
Within the 60-day
period during which the Applicant mistakenly thought he had to file an appeal,
he called a lawyer who informed him that the time limit of 30 days to file an
appeal had already expired, and that the 60-day period was actually the period
during which the Applicant was to leave Canada.
[8]
On November 15,
the Applicant voluntarily left Canada for the United States.
[9]
An application to
extend the deadline to appeal the removal order was filed on November 17, 2005.
It was subsequently dismissed by the Board.
3. The
Decision under Review
[10]
The Board found
that it did not have jurisdiction to extend the time to file an appeal under
section 63(3) once the prescribed delay had expired because the Applicant was
no longer a permanent resident of Canada. The
Board reasoned that since no appeal had been filed in the 30-day period
pursuant to paragraph 49(1)(b) of the IRPA, the removal order came into
force the day the appeal period expired, and the Applicant contemporaneously
lost his permanent resident status, pursuant to paragraph 46(1)(c) of
the IRPA. Moreover, pursuant to sections 237 and 240 of the Immigration and
Refugee Protection Regulations, (the Regulations), SPR/2002-227, June 11,
2002,
Canada Gazette, Part II, June 14, 2002, the order had been enforced by
the voluntary departure of the applicant to United States on November 15, 2005. The Board also determined
that paragraph 58(d) of the Immigration Appeal Division Rules
(IAD Rules) does not give it the authority to give back a right of appeal which
no longer exists.
4.
Issues
A. Is the issue of the Board’s jurisdiction moot
owing to the voluntary departure of the Applicant to the United States?
B. Did the Board
err in finding that it had no jurisdiction under IAD Rule 58 to extend the
delay prescribed by IAD Rule 7(2)?
C. If the Board has
no jurisdiction under IAD Rule 58 to extend the delay prescribed in IAD Rule
7(2), is there a breach the Applicant’s rights under section 7 of the Charter?
5. Standard
of Review
[11]
The central
question in this application is whether the Tribunal had jurisdiction to act.
This is a question of Law. The Supreme Court of Canada in Pushpanathan
v. Canada, [1998] 1 S.C.R. 982, decided that the standard of review
applicable to a decision rendered by the Immigration and Refugee Board, Appeal
Division on a question of law is correctness. I am bound by that decision and
will apply the correctness standard in reviewing the Board’s decision.
6. Analysis
A. Is the issue of the
Board’s jurisdiction moot owing to the voluntary departure of the Applicant to
the United States?
[12]
At the hearing,
the Respondent argued that the question before the Court is moot because the decision
has been “enforced” by the voluntary departure of the applicant. The argument
is based on the subsection 240(1) of the Regulations which reads as follows:
|
When
removal order is enforced
240. (1) A removal
order against a foreign national, whether it is enforced by voluntary
compliance or by the Minister, is enforced when the foreign national
(a) appears
before an officer at a port of entry to verify their departure from Canada;
(b) obtains a
certificate of departure from the Department;
(c) departs
from Canada; and
(d) is
authorized to enter, other than for purposes of transit, their country of
destination.
|
Mesure de renvoi exécuté
240. (1)
Qu’elle soit volontaire ou forcée, l’exécution d’une mesure de renvoi n’est
parfaite que si l’étranger, à la fois :
a) comparaît devant un agent au point
d’entrée pour confirmer son départ du Canada;
b) a obtenu du ministère
l’attestation de départ;
c) quitte le Canada;
d) est autorisé à entrer, à d’autres
fins qu’un simple transit, dans son pays de destination.
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[13]
The Applicant
objects to the Court hearing the Respondent on mootness since the issue was not
raised in the notice of application or in the Respondent’s written submissions.
I agree. There was nothing to prevent the Respondent from raising the issue
earlier. To allow an issue to be raised for the first time at the hearing is
without question prejudicial to the Applicant who has had no opportunity to
prepare a response to the argument. In the result, the issue of mootness will
therefore not be considered in this application.
B. Did the Board err in finding that it has no
jurisdiction under IAD Rule 58 to extend the delay prescribed by IAD Rule 7(2)?
[14]
IAD Rule 7(2) prescribes
30 days as the time for filing an appeal of a removal order to the Appeal
Division. Paragraph 58(d) of IAD Rules provides as follows:
58. Powers of the Division – The Division may
…
(d) extend or shorten a
time limit, before or after the time limit has passed.
[15]
Subsection 63(3)
of the IRPA provides that a permanent resident or a protected person may appeal
to the Appeal Division against a decision at an examination or admissibility
hearing to make a removal order against them.
[16]
Paragraph 49(1)(b)
of the IRPA establishes that upon the expiration of the delay to file a notice
of appeal, a removal order comes into force. Paragraph 46(1)(e) provides
that a person loses permanent
resident status when a removal order comes into force. Here, no notice of
appeal was filed by the Applicant before the expiration of the delay to appeal
the making of the removal order.
[17]
The Applicant
submits that the Board erred in determining that it had no jurisdiction under
IAD Rule 58 to extend time for filing an appeal when the time for doing so had
expired. He relies on Richardson v. Canada, [1989] 3 C.F. 47 (F.C.A.), where the Federal Court of
Appeal found that the Board had jurisdiction to extend time for the filing of
an appeal. Richardson was decided under the Immigration
Act, 1976 (the Immigration Act). The Applicant argues that the
powers under that Act are similar to those under the current act, the IRPA.
[18]
The Respondent
submits that a decision on an application for an extension of time in which to
file an appeal is a decision ancillary to the decision on the appeal itself and
should be subject to the same fate as the main decision. The Respondent
contends that the Board has no jurisdiction under the IRPA to hear the
Applicant’s appeal on the date the notice of appeal was filed because the
Applicant was no longer a foreign national holding a permanent resident visa as
required pursuant to subsection 63(3) of the IRPA. Consequently, if the Board
does not have jurisdiction on the appeal, it does not have the jurisdiction to
grant an extension of delay to file a notice of appeal. The Respondent relies
on the following decisions also rendered under the Immigration Act; M.C.I.v. Jessani, 2001 FCA 127 and M.E.I. v.
Restrepo, [1989] 8 Imm. L.R. (2d) 161 (F.C.A.) and Webster v. Canada, [2003] F.C.J. No. 1569 (QL) (F.C.A.).
[19]
In Jessani and
Restrepo, the Federal Court of Appeal dealt with the jurisdiction of the
Appeal Division in respect to subsection 70(1) of the Immigration Act,
R.S.C. 1985, c. I-2, which provided as follows:
|
70.(1) Subject to subsections (4) 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 that
person pursuant to the regulations, that person may appeal to the Board on
either or both of the following grounds,
(a) on any ground of appeal that
involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to
all the circumstances of the case, the person should not be removed from Canada.
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70.(1) Sous réserve du paragraphe (4), les
résidents permanents et les titulaires de permis de retour en cours de
validité et conformes aux règlements peuvent faire appel d’une mesure de
renvoi devant la Commission en invoquant les moyens suivants :
a) question de droit, de fait ou mixte;
b) le fait que, eu égard aux circonstances particulières de l’espèce,
ils ne devraient pas être renvoyés du Canada.
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[20]
The Federal Court
of Appeal also dealt with the Appeal Division’s jurisdiction in Canada (Minister of Employment and Immigration v. Selby, [1981] 110
D.L.R. (3) 126 (F.C.A.). In all three decisions, the Court essentially decided
that the Appeal Division could not allow an appeal unless the appeal was made
by a person entitled by law to appeal before the Board, namely a permanent
resident.
[21]
Under subsection
24(1) of the Immigration Act a person ceases to be a permanent resident
in either of the following circumstances: (a) that person leaves or
remains outside Canada with the intention of abandoning Canada as that person’s
place of permanent residence; or (b) a deportation order has been made
against that person and the order is not quashed or the execution thereof is
not stayed pursuant to subsection 73(1).
[22]
The current
legislative framework is different. Subsection 46(1) of the IRPA provides as
follows:
|
46.(1) A person loses permanent resident status
(a) when they become a Canadian citizen;
(b) on a final determination of a
decision made outside of Canada that they have failed to comply
with the residency obligation under section 28;
(c) when a removal order made against
them comes into force; or
(d) on a final determination under
section 109 to vacate a decision to allow their claim for refugee protection
or a final determination under subsection 114(3) to vacate a decision to
allow their application for protection.
|
46.(1) Emportent perte du statut de résident permanent les faits
suivants :
a) l’obtention de la citoyenneté canadienne;
b) la confirmation en dernier ressort du constat,
hors du Canada, de manquement à l’obligation de résidence;
c) la prise d’effet de la mesure de renvoi;
d) l’annulation en dernier ressort de la décision ayant accueilli la
demande d’asile ou celle d’accorder la demande de protection.
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[23]
The IRPA expressly provides for a right of appeal against a
decision to make a removal order following an examination. There is no such
specific provision under the Immigration Act. Further, paragraph
24(2((b) of the Immigration Act provides that permanent resident
status is lost upon the making of the removal order “and such order is not
quashed”. Under the IRPA, permanent resident status is only lost upon the
coming into force of the removal order (s. 46(1)(c)) which, in the
circumstances of this case, would have occurred when the appeal period expired (s.49(1)(b)).
[24]
The provisions
under the IRPA, not found in the Immigration Act, particularly those affecting
the loss of permanent residence status and the explicit provisions dealing with
the right of appeal to the Appeal Division raise questions as to the
applicability of the above discussed jurisprudence cited by the Respondent
regarding the Appeal Division’s jurisdiction under the IRPA.
[25]
In my view, the coming into
force of the IRPA calls for the issue to be considered in the context of the
current statutory scheme.
[26]
The circumstances
of this case bring into focus a right of appeal expressly provided for by
Parliament in subsections 63(3) of the IRPA, namely the right of a permanent
resident to appeal against a decision at an examination to make a removal
order. Such orders which provide for the expulsion from Canada of persons who,
in certain cases, have resided here for years and who have established
substantial ties to Canada, have a dramatic impact on the rights of those
persons. The right of appeal expressly provided for in the IRPA is an important
guarantee against arbitrary decisions. The Respondent’s interpretation of the
applicable provisions of the IRPA would in essence deprive the Applicant of his
right to appeal in the circumstances. The Respondent contends that the Appeal
Division is without jurisdiction to extend time for the Applicant to file his
appeal because he is no longer a permanent resident. The Respondent maintains
this position even though Rule 58(d) of the Immigration Appeal Division
Rules (“IAD Rules”) expressly provides that the Division may extend or shorten
a time limit before or after the time limit has passed.
[27]
The Applicant no
longer has permanent resident status because of the decision made to issue a
removal order against him at the examination, the very decision he wishes to
appeal. To narrowly interpret the applicable provisions of the IRPA as does the
Respondent, would in my view fail to give effect to Parliament’s intention to
afford the Applicant a right of Appeal in the circumstances.
[28]
The Supreme Court
of Canada in Rizzo and Rizzo Shoes Ltd.,
[1998] 1 S.C.R. 27, adopted the principle approach to be followed in statutory
interpretation set out by Elmer Driedger in Sullivan and Driedger on the
Construction of Statutes, 4th ed., (Markham: Butterworths,
2002). At page 87, the author wrote:
Today there is only one principle or approach,
namely, the words of an Act are to be read in their entire context and in their
grammatical and ordinary sense harmoniously with the scheme of the Act, the
object of the Act, and the intention of Parliament.
[29]
Here the intention
of Parliament is to provide a permanent resident with a right of appeal to the
Appeal division. The scheme under the IRPA provides for the making of Rules and
Regulations to govern how such appeals are to be made. These Rules, passed
under legislative authority provide discretion to the Appeal Division to extend
time after a time limit has passed.
[30]
Further, the
Supreme Court in Rizzo, supra, was guided by the provisions of the Interpretation
Act, R.S.O. 1980, c. 219, in construing a statutory provision. Paragraph 22
of the Court’s reasons for decision reads as follows:
I also rely upon s. 10 of the Interpretation
Act, R.S.O. 1980, c. 219, which provides that every Act “shall be deemed to
be remedial” and directs that every Act shall “receive such fair, large and
liberal construction and interpretation as will best ensure the attainment of
the object of the Act according to its true intent, meaning and spirit”.
[31]
Here, it is clear
that the scheme of the legislation is to confer a benefit to permanent
residents, namely, a right of appeal. Further, the IDA Rules passed under
authority of the IRPA expressly provide that the Appeal Division can extend
time when time has passed. Interpreting the applicable provisions in a fair,
large and liberal manner and in accordance with the above discussed principles,
I find that to achieve the object of the Act according to its intent and spirit
requires, in the circumstances, that the provisions be interpreted so as to
recognize the Appeal Division’s jurisdiction to extend time after the time to
appeal has expired. In my view, the narrower and more restrictive interpretation
advanced by the Respondent would be inconsistent with the scheme of the Act. Moreover,
it would be a denial of justice, in my view, to deprive the Applicant of his
right to appeal for failing to strictly comply with the limitation period
without at least hearing his explanation for the delay. There may well be
instances where an applicant is able to adequately explain the delay. In such
cases, it would be inequitable to deprive applicants of a right of appeal
provided for in law.
[32]
I find that the
Appeal Division does have jurisdiction to hear the request to extend time and
then decide in the exercise of its discretion if the request is justified. If
the extension is granted then the effect of such a determination by the Appeal
Division would be to allow the appeal to be made in time and the removal order
would be vitiated. As a consequence the Applicant would retain his permanent
resident status and the Appeal Division would have jurisdiction to hear the
Appeal. Such an interpretation is in my view in keeping with the statutory
scheme and the intention of Parliament to provide for a right of appeal, a
significant guarantee against arbitrary decisions when important rights are in
play. In my view, Parliament could
not have intended to deprive a person of his or her right to appeal from a
deportation order because of a failure to respect the delay to appeal no matter
the circumstances, absent express language to that effect.
[33]
I find support for
my conclusion in Richardson, relied on by the Applicant. While Richardson was decided under the Immigration Act, in that
case the Federal Court of Appeal did determine that the Appeal Division’s
jurisdiction to extend time included the power to extend time to file a notice
of appeal.
[34]
In Richardson a removal order was issued against Mr. Richardson for reasons of
criminality. At the outset he had decided not to appeal the decision to issue
the removal order. After the expiration of the delay to appeal, he changed his
mind and filed a motion pursuant to Rule 9(2) of the Immigration Appeal
Board Rules of 1981, to extend the time limitation imposed by Rule 22 of
the same Rules. These provisions are similar to Rules 58(d) and 7(2) of the
current IAD Rules and the former Rules essentially provided the Appeal Division
with the authority to extend time generally. In its reasons the Federal Court
of Appeal concluded that the Appeal Division had jurisdiction to extend the
delay for filing a notice of appeal. At page 48, the Court reasoned as follows:
With every defence, we are all of the view that subsection 9(2) of these same Rules
does empower the board to grant such an enlargement.
That subsection provides "In the case of an appeal brought pursuant to
subsection 72(1) of the Act, the Board may enlarge the time prescribed by these
Rules for doing any act or taking any proceeding on such terms, if any, as seem
just, although the application for the enlargement is not made until after the
expiration of the prescribed or fixed time.”
Subsection 72(1) confers upon this applicant, as a permanent resident, the
right of appeal to the Board from a removal order made against him, on a question
of law, or fact, or mixed law and fact as well as upon equitable grounds.
In our view, an application for extension of the five day period specified in
Rule 22 is clearly within the contemplation of the language employed in Rule
9(2). We do not agree with the
view of the Trial Division in Kwan that Rule 9(2) “only authorizes the Board to
enlarge the time when an appeal has been brought, in other words, when an
appeal is already before it.” In our opinion, such an interpretation reflects
an unduly restricted construction of the words used in Rule 9(2), actually it
is hardly possible to visualize a factual scenario where Rule 9(2) could be
utilized, given such a narrow interpretation. We think that, when someone in
the position of this applicant who has been given a right to appeal the
exclusion order issued against him, applies to extend the time within which to
file that appeal, he is “bringing a proceeding” as that expression is used in
Rule 9(2).
[35]
Pursuant to
paragraph 24(1)(b) of the Immigration Act a person ceases to be a
permanent resident when a removal order is issued against that person and the
order is not quashed or stayed. In Richardson,
therefore, as is the case here, the applicant was without permanent resident
status at the time the request for an extension of time was made to the Appeal
Division. In this regard, Richardson
is not distinguishable for the circumstances of this case.
[36]
The Respondent
also relies on Webster a decision of the Federal Court of Appeal in
respect to an income tax matter. In that case, the Court decided that the
Federal Court did not have jurisdiction to grant an extension of time in
respect to an issue for which it did not have jurisdiction. The Court ruled
that the tax reassessment could only be challenged by appeal to the Tax Court.
Here, unlike the circumstances in Webster, the Appeal Division had jurisdiction
to consider the appeal, arguably until the time the Applicant lost his
permanent resident status. In Webster the Court never had
jurisdiction on the issue to be determined in the first place. On this basis Webster
is distinguishable.
[37]
Given that my
findings in regard to the second issue are determinative of this application,
it is therefore unnecessary to deal with the third and final issue raised by
the Applicant.
[38]
Both the Applicant
and Respondent have proposed serious questions of general importance for
certification. I have considered the proposed questions and the written
submissions of the parties. I am of the opinion that the following question proposed
by the Respondent transcends the interests of the parties, contemplates issues
of broad significance or general application and is a question that is
determinative of the appeal. Pursuant to subsection 74(d) of the IRPA, I
therefore certify and state the question as follows:
Would it be lawful for the Immigration Appeal
Division to entertain an application for an extension of time pursuant to
subsection 58(d) of the Immigration Appeal Division Rules made by an
individual who has no right of appeal through the combined effect of paragraphs
49(1)(b) and 46(1)(c), sections 2 and 63 of the Immigration
Refugee Protection Act?
7. Conclusion
[39]
For the above
reasons the application will be allowed. The Appeal Division’s decision will be set aside and the matter
remitted for re-determination by a differently constituted panel in accordance
with these reasons.
JUDGMENT
THIS COURT ADJUDGES
that:
1. The application for
judicial review is allowed.
2. The Appeal Division Board’s decision is set aside and the matter
is remitted for re-determination by a differently constituted panel in
accordance with these reasons.
3. The following question is certified:
Would it be lawful for the Immigration Appeal
Division to entertain an application for an extension of time pursuant to
subsection 58(d) of the Immigration Appeal Division Rules made by an
individual who has no right of appeal through the combined effect of paragraphs
49(1)(b) and 46(1)(c), sections 2 and 63 of the Immigration
Refugee Protection Act?
“Edmond P.
Blanchard”
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