Date: 20000713
Docket: IMM-742-00
BETWEEN:
EDUARDO MANUEL MELO
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] Mr. Melo, who was ordered deported on November 10, 1994, lost his equitable grounds appeal before the Immigration and Refugee Board (Appeal Division) (the "IAD") by decision dated 20 August 1997. On 30 September 1999, pursuant to Rule 27 of the Immigration Appeal Division Rules, Mr. Melo applied to the IAD to re-open his appeal. By decision dated 21 January 2000, the IAD refused the application. For the reasons which follow, I find that this decision was made in reviewable error.
[2] With respect to this application, the IAD found that the principles to be applied are as follows:
| The IAD has a continuing discretionary jurisdiction to reopen the hearing of an appeal to permit an applicant to present additional evidence. [Grillas v. Canada (Minister of Manpower and Immigration), [1972] S.C.R. 577">[1972] S.C.R. 577; 23 D.L. R. (3d) 1 (S.C.C.)]. A reopening of a disposed appeal should not be granted unless the IAD is satisfied that the evidence sought to be introduced could not have been obtained by reasonable diligence for the original hearing [Sandhu v. Canada (Minister of Employment and Immigration), (1987) 78 N.R. 236 at 237 & 238] or unless the IAD recognizes that it has failed in some way to observe the rules of natural justice.[Gill v. Canada (Minister of Employment and Immigration) (1987) 80 N.R. 1 at 3]. The rest to be met for a reopening is whether there is a reasonable possibility that the new evidence might lead the IAD to change its original decision.[Castro v. Canada (Minister of Employment and Immigration) (1988), 5 Imm. L.R. (2d) 207 (FCA).] The new evidence is to be examined and a determination made whether or not it is of sufficient weight in relation to other evidence in the case that the IAD should exercise its discretion and reopen the case.[Fleming v. Canada (Minister of Employment and Immigration) (1987), 4 Imm. L.R. (2d) 207 (FCA)]. |
[3] While it is agreed that each of the principles cited are correct individually, in my opinion, the IAD erred in applying them.
[4] The principles cited relate to two distinct types of new evidence; evidence that was available at the time of the hearing of the appeal but not tendered, and evidence that post-dates the appeal decision. Mr. Melo"s application before the IAD was made solely on the basis of evidence which post-dates the 20 August 1997 decision.1 However, in deciding the application to re-open, the IAD erroneously attempted to apply the principle respecting evidence that was available at the time of the hearing of the appeal but not tendered. That is, throughout its decision, the IAD erroneously evaluated the evidence which clearly post-dates the 20 August 1997 decision according to the standard of whether, with due diligence, it could have been tendered in the formulation of that decision.
[5] As a consequence of this flawed analysis, the IAD reached the following conclusion:
| I am satisfied that the bulk of the evidence sought to be introduced is not new evidence or evidence that could not have been obtained by reasonable diligence on the part of the applicant for the original hearing. The new evidence and court jurisprudence that the applicant has introduced, when weighed, considered and evaluated by this panel, is not of sufficient weight in relation to other evidence in the case to establish a reasonable possibility that this evidence might lead the IAD to change its decision.2 |
[6] Therefore, on the reasoning just quoted, the bulk of the evidence provided by Mr. Melo was essentially dismissed as irrelevant, with only a remainder being considered in the required weighing process.
[7] In my opinion, as a result of the misapplication of the principles respecting re-opening, the IAD"s conclusion was reached by a reviewable error in law.3
ORDER
[8] Accordingly, I set aside the IAD"s decision of 21 January 2000, and refer Mr. Melo"s application to re-open back to a differently constituted panel of its IAD for reconsideration on the facts as they exist at the time of that reconsideration.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
13 July 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: EDUARDO MANUEL MELO |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: TUESDAY, JULY 11, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
DATED: THURSDAY, JULY 13, 2000
| APPEARANCES BY: Ms. Barbara Jackman |
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000713
Docket: IMM-742-00
BETWEEN:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
AND ORDER
__________________
1 Affidavit of Eduardo Manuel Melo, Applicant"s Application Record, p. 26, paragraph 6.
2 Applicant"s Application Record, p. 15.
3 A similar result was reached by Urie J. in Fleming v. M.E.I. (1987) 4 IMM. L.R. (2d) 207 (F.C.A.).
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