Date: 20081114
Docket: IMM-962-08
Citation: 2008 FC 1264
Ottawa, Ontario, this 14th
day of November 2008
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
and
Eluzur
RUMPLER
Respondent
REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
is an application for judicial review by the Minister pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27
(the “Act”) of the decision of the Immigration and Refugee Board, Immigration
Appeal Division (“IAD”), dated February 13, 2008, wherein the IAD concluded it had
jurisdiction to hear an appeal of the respondent’s removal order.
* * * * * * *
*
[2]
The
respondent, Eluzur Rumpler, is a citizen of the United States, and an
ultra-orthodox Jew. His native languages are Hebrew and Yiddish; he speaks some
English and no French.
[3]
The
respondent became a resident of Canada in 1979, when he was
five years old. According to the affidavit of Catherine Raymond, hearing
officer, he has lived in Canada continuously since then, except during the
period of 2001-2003, when he worked in Israel for a
Canadian religious organization.
[4]
Every
time a permanent resident re-enters Canada, he must satisfy the
immigration officer that he has complied with the residency requirements
described in paragraph 28(2) of the Act during the previous five-year period.
[5]
Here
are the events underlying this claim, in chronological order:
-
September
16, 2005: Returning to Canada from Israel, an immigration officer determined that
the respondent did not satisfy the residency requirements of section 28 of
the Act, and undertook measures to have him removed.
-
October
17, 2005: The period to appeal the removal order expired.
-
November
15, 2005: The respondent voluntarily left Canada for the United States.
-
November
17, 2005: The respondent requested of the IAD an extension of the period, to
allow him to lodge an appeal of the removal order.
-
February
10, 2006: The IAD decided that, according to subsection 63(3) of the Act, it
did not have the competence to extend the period of appeal after its
expiration, because the respondent had lost his status as permanent resident by
failing to appeal.
-
December
13, 2006: Justice Blanchard of the Federal Court granted the respondent’s
application for judicial review, and held that the IAD did have competence
under the said provision to grant the extension. Following this ruling, an
extension was granted by a different member of the IAD.
-
May 3,
2007: At a new hearing before the IAD, the Minister asked the tribunal to
reject the appeal of the removal order on the ground of mootness, because the
respondent had voluntarily left the country and thus executed the order.
-
February
13, 2008: In written reasons, Commissioner Jean-Carle Hudon of the IAD rejected
the Minister’s motion.
-
February
29, 2008: The Minister brought this application for judicial review of the
IAD’s decision, for which leave was granted on July 9th.
* * * * * * * *
[6]
This
case involves the interplay among several provisions of the Act, the Immigration
and Refugee Protection Regulations, SOR/2002-227 (the “Regulations”) and
the Immigration Appeal Division Rules, SOR/2002-230 (the “Rules”).
[7]
The
following provisions of the Act are relevant:
|
2.
(1) …
“permanent
resident” means a person who has acquired permanent resident status and has
not subsequently lost that status under section 46.
|
2. (1) …
« résident permanent » Personne qui a le statut de résident
permanent et n’a pas perdu ce statut au titre de l’article 46.
|
|
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.
[…]
|
|
49. (1)
A removal order comes into force on the latest of the following dates:
(a) the
day the removal order is made, if there is no right to appeal;
(b) the
day the appeal period expires, if there is a right to appeal and no appeal is
made; and
(c) the
day of the final determination of the appeal, if an appeal is made.
[…]
|
49. (1) La mesure de renvoi
non susceptible d’appel prend effet immédiatement; celle susceptible d’appel
prend effet à l’expiration du délai d’appel, s’il n’est pas formé, ou quand
est rendue la décision qui a pour résultat le maintien définitif de la
mesure.
[…]
|
|
63. (1) A person who has filed in the prescribed
manner an application to sponsor a foreign national as a member of the family
class may appeal to the Immigration Appeal Division against a decision not to
issue the foreign national a permanent resident visa.
(2) A foreign national who holds a
permanent resident visa may appeal to the Immigration Appeal Division against
a decision at an examination or admissibility hearing to make a removal order
against them.
(3) A permanent resident or a protected
person may appeal to the Immigration Appeal Division against a decision at an
examination or admissibility hearing to make a removal order against them.
(4) A permanent resident may appeal to the
Immigration Appeal Division against a decision made outside of Canada on the residency obligation under section 28.
(5) The Minister may appeal to the
Immigration Appeal Division against a decision of the Immigration Division in
an admissibility hearing.
|
63. (1) Quiconque a
déposé, conformément au règlement, une demande de parrainage au titre du
regroupement familial peut interjeter appel du refus de délivrer le visa de
résident permanent.
(2)
Le
titulaire d’un visa de résident permanent peut interjeter appel de la mesure
de renvoi prise au contrôle ou à l’enquête.
(3)
Le
résident permanent ou la personne protégée peut interjeter appel de la mesure
de renvoi prise au contrôle ou à l’enquête.
(4) Le résident permanent peut
interjeter appel de la décision rendue hors du Canada sur l’obligation de
résidence.
(5)
Le
ministre peut interjeter appel de la décision de la Section de l’immigration
rendue dans le cadre de l’enquête.
|
|
161. (1) Subject to the
approval of the Governor in Council, and in consultation with the Deputy
Chairpersons and the Director General of the Immigration Division, the
Chairperson may make rules respecting
(a) the
activities, practice and procedure of each of the Divisions of the Board,
including the periods for appeal, the priority to be given to proceedings,
the notice that is required and the period in which notice must be given;
[…]
|
161. (1)
Sous réserve de l’agrément du gouverneur en conseil et en consultation avec
les vice-présidents et le directeur général de la Section de l’immigration,
le président peut prendre des règles visant :
a) les travaux, la procédure et la
pratique des sections, et notamment les délais pour interjeter appel de leurs
décisions, l’ordre de priorité pour l’étude des affaires et les préavis à
donner, ainsi que les délais afférents;
[…]
|
[8]
The
following provisions of the Regulations are also pertinent:
|
237. A removal order is enforced
by the voluntary compliance of a foreign national with the removal order or
by the removal of the foreign national by the Minister.
|
237. L’exécution d’une mesure de renvoi est
soit volontaire, soit forcée.
|
|
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.
|
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.
|
[9]
Finally,
the following provisions of the Immigration Appeal Division Rules also
bear on the present case:
|
7. (1) If a foreign national
who holds a permanent resident visa, a permanent resident, or a protected
person wants to appeal a removal order made at an examination, they must
provide a notice of appeal to the Division together with the removal order.
(2) The notice of appeal and
the removal order must be received by the Division no later than 30 days
after the appellant received the removal order.
[…]
|
7. (1) Si le titulaire d’un
visa de résident permanent, le résident permanent ou la personne protégée
veut interjeter appel d’une mesure de renvoi prise au contrôle, il transmet à
a Section un avis d’appel et la mesure de renvoi.
(2) L’avis d’appel et la
mesure de renvoi doivent être reçus par la Section au plus tard trente jours
suivant la date à laquelle l’appelant reçoit la mesure de renvoi.
[…]
|
|
58. The
Division may
(a) act on its own initiative, without a
party having to make an application or request to the Division;
(b) change a requirement of a rule;
(c) excuse a person from a requirement of
a rule; and
(d) extend or shorten a time limit,
before or after the time limit has passed.
|
58. La Section peut :
a) agir
de sa propre initiative sans qu'une partie n'ait à lui présenter une demande;
b) modifier
une exigence d'une règle;
c) permettre
à une partie de ne pas suivre une règle;
d) proroger ou abréger un délai
avant ou après son expiration.
|
* * * * * * * *
[10]
The
IAD member plainly believes that his decision flows directly from Justice
Blanchard’s ruling in Rumpler v. Canada (Minister of
Citizenship and Immigration), [2007] 3 F.C.R. 702, that the IAD has
authority to extend the time to lodge an appeal. He concludes that the
combination of section 161 of the Act, which puts questions regarding the
periods of appeals and extensions of time limits within the jurisdiction of the
IAD, and section 58 of the Rules of the IAD, which empowers the IAD to “extend
or shorten a time limit, before or after the time limit has passed”, has the
effect of removing the present claim from the purview of paragraph 49(1)(b)
of the Act. According to subsection 49(1), a removal order comes into force,
where there is a right to appeal, on the latest of the day the appeal
period expires where no appeal is made, the day of the final determination of
the appeal, if an appeal is made. Following the ruling of Justice Blanchard,
and the subsequent grant by the IAD of the application to extend the time limit
for the late notice of appeal, an appeal has in effect been made, and the case
is now governed by 49(1)(c).
[11]
Before
me, the applicant raised the same question of mootness which he attempted,
albeit without success, to raise before Mr. Justice Blanchard, in Rumpler,
supra. It is important to note that Mr. Justice Blanchard, in his
decision, refused to consider the mootness argument based on subsection 240(1)
of the Regulations and the voluntary departure of the applicant, because the
issue had not been raised in the written submissions before him:
[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.
[12]
In
the case at bar, the same argument of lack of jurisdiction is properly raised
in the written submissions and must, therefore, be considered.
[13]
I
agree with the applicant that the IAD erred in law in finding that it had
continuing jurisdiction in spite of the fact that the respondent had left Canada and had
executed the removal order before he filed a notice of appeal.
[14]
It
is trite law that the IAD does not have jurisdiction to reopen an appeal where
the motion to reopen has been filed after an appellant is removed from Canada. In Canada (Minister of
Citizenship and Immigration) v. Toledo, [2000] 3
F.C. 563, the Federal Court of Appeal stated, at paragraph 26:
[26] I
therefore conclude that the Supreme Court of Canada did not decide, in Grillas,
supra, that an appeal could not be reopened once an unsuccessful
appellant had been removed from Canada
before his motion to reopen had been heard and decided. The provisions of the
current Immigration Act recognize that the Appeal Division has continuing
jurisdiction to reopen an appeal in cases where the continuing jurisdiction
has already been engaged at the time an unsuccessful appellant is removed from
Canada.
(Emphasis
is mine.)
[15]
In
a previous decision, Clancey v. Minister of Employment and Immigration (1988),
86 N.R. 301, at page 302, the Federal Court of Appeal noted that the Board had
power to reopen at any time until execution of the deportation order:
. . . We agree that the Board’s equitable
jurisdiction under s. 72(1)(b) is a continuing jurisdiction and not
one which must be exercised once and for all. We think also that the Board can
exercise that jurisdiction until such time as the removal order has actually
been executed. In this case, the Board had jurisdiction to entertain the appeal
at the time when the respondent filed his notice of appeal. Its equitable
jurisdiction continues thereafter, in our view, until his removal from Canada has been effected.
[16]
More
recently, in the case of Chieu v. Canada (Minister of Citizenship and Immigration),
[2002] 1 S.C.R. 84, at paragraph 48, the Supreme Court of Canada cited with
approval an extract from Lorne Waldman’s Immigration Law and Practice
(loose-leaf ed.), at §10.133.7:
It is trite law that the Appeal Division
has ongoing jurisdiction over the appellant up to and until the time that the
removal order is executed. . . .
[17]
In
my view, the IAD was bound by the above jurisprudence and therefore clearly
erred in law by not applying it.
[18]
As
the IAD does not have the jurisdiction to cancel the removal order once it has already
been executed, it necessarily has no jurisdiction to grant a request (filed
after such an execution) for an extension of time to lodge an appeal of the
removal order.
[19]
Consequently,
the application for judicial review is allowed, the IAD’s decision dated
February 13, 2008 is set aside, and the matter is sent back for
re-determination by a differently constituted panel of the IAD.
[20]
The
respondent Eluzur Rumpler proposed the following question as a serious question
of general importance to be certified for appeal:
Does the Immigration Appeal Division lose
jurisdiction over an appeal by a permanent resident under section 63(3) of
IRPA, of a removal order based on alleged non-compliance with the residency
obligation at IRPA article 28, if the permanent resident leaves Canada before filing that appeal?
[21]
Further
to my request for written submissions in support of this proposition for
certification, counsel for the respondent laconically wrote one sentence, which
reads:
The respondent submits that such an
interpretation of IRPA clashes with IRPA 63(4), whereby a residency obligation
decision may be appealed from outside Canada.
[22]
I
agree with the applicant, the Minister of Citizenship and Immigration, that it
is clear that subsection 63(4) of the Immigration and Refugee Protection Act
does not apply and, therefore, does not “clash” with subsection 63(3).
Subsection 63(4) reads as follows:
|
63.
(4) A permanent resident may appeal to the Immigration Appeal Division
against a decision made outside of Canada
on the residency obligation under section 28.
|
63.
(4) Le résident permanent peut interjeter appel de la décision rendue hors du
Canada sur l’obligation de résidence.
|
[23]
The
purpose of the provision is to grant a permanent resident a right of appeal to
the IAD against a decision made outside of Canada. As the
departure order in this case was made in Quebec City, subsection
63(4) is irrelevant.
[24]
Consequently,
the proposed question will not be certified.
JUDGMENT
The application for judicial review is allowed.
The decision of the Immigration Appeal Division (“IAD”) of the Immigration and
Refugee Board dated February 13, 2008 is set aside and the matter is sent
back for re-determination by a differently constituted panel of the IAD.
“Yvon Pinard”
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