Date: 20010427
Docket: A-242-00
Neutral citation: 2001 FCA 127
CORAM: ISAAC J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
SADRUDIN JESSANI
Respondent
Heard at Toronto, Ontario, Tuesday, April 24, 2001
Judgment delivered at Toronto, Ontario,
on Friday, April 27, 2001
REASONS FOR JUDGMENT BY: MALONE J.A.
CONCURRED IN BY: ISAAC J.A.
CONCURRED IN BY: SEXTON J.A.
Date: 20010427
Docket: A-242-00
Neutral citation: 2001 FCA 127
CORAM: ISAAC J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
SADRUDIN JESSANI
Respondent
REASONS FOR JUDGMENT
MALONE J.A.
A. Order under review
This is an appeal from an order made by a Motions Judge of the Trial Division on April 5, 2000. Pursuant to that order, the Motions Judge allowed the respondent's application for judicial review, and set aside a decision of the Immigration and Refugee Board, Appeal Division (the "IAD" or "the Board"), dated June 18, 1999. The Board dismissed, for lack of jurisdiction, the respondent's appeal from an exclusion order made by an adjudicator on September 24, 1997.
B. Certified Question
The Motions Judge certified the following question of general importance for this Court's consideration:
When an adjudicator has found that a person has lost permanent residence by application of s. 24 of the Immigration Act, does the IAD have jurisdiction to consider an appeal under s. 70(1) of the Immigration Act?
C. Factual Background
The facts that give rise to this appeal are easily summarized. The respondent who is originally from Tanzania came to Canada in March of 1991 and became a permanent resident on March 17 of that year. He left Canada approximately six months later and only returned to Canada in March of 1997. On his return, the respondent falsely indicated on a Canada Customs form that he had left Canada in August of 1996.
Subsequently, a senior immigration officer wrote a report, under paragraph 20(1)(a) of the Immigration Act, R.S.C. 1985, I-2 ("the Act") alleging that the respondent was a person seeking to enter Canada who had not complied with the requirements of the Act and Regulations. He concluded that the respondent had abandoned his permanent residence pursuant to paragraph 24(1)(a) of the Act. As a result of this report, an inquiry was convened before an adjudicator to determine whether the respondent had abandoned his permanent residence in Canada.
Mr. Jessani did not lead any evidence at the inquiry nor did he contest any of the allegations in the officer's report including the allegation that he had abandoned his permanent residence, pursuant to paragraph 24(1)(a) of the Act.
The adjudicator confirmed the officer's factual finding that Mr. Jessani had abandoned his permanent residence and ruled that the respondent had abandoned Canada as his place of permanent residence, pursuant to subsection 24(2) of the Act. The adjudicator also determined that the respondent was not in possession of the necessary immigrant visa to permit him to remain in Canada, and issued an exclusion order.
Mr. Jessani filed an appeal with the Board. After a hearing at which the respondent gave evidence, the Board found that Mr. Jessani never established physical residence in Canada, nor had he displayed any intention of so doing until issuance of the exclusion order in September, 1997. The Board also found that Mr. Jessani was not a permanent resident and dismissed the appeal for lack of jurisdiction pursuant to subsection 70(1) of the Act.
On judicial review, the Motions Judge held that a proper interpretation of subsection 70(1) allows a person who is a permanent resident "but for the decision of an adjudicator", to appeal the adjudicator's decision to the Board on the grounds found in either paragraphs 70(1)(a) or 70(1)(b), or both. The Motions Judge concluded that the benefit of an appeal conferred by subsection 70(1) existed unless excluded by Parliament using express language. The Motions Judge also held that the Board erred in finding that the respondent knew effectively nothing about the 183 day rule established under subsection 24(2) of the Act. This conclusion was based on the Motions Judge's determination that the transcript clearly showed that the respondent knew about this rule at least six months after he left Canada.
D. Alleged Errors of Law
The Minister appeals on the basis that the Motions Judge erred in law in applying an incorrect standard of review as well as his misinterpretation of the jurisdiction of the Board under section 70.
E. Jurisdiction of the Board
Subsection 70(1) of the Act reads as follows:
70(1) Subject to subsections (4) and (5), where a removal order or conditional 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 Appeal Division on either or both of the following grounds, namely,
(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.
Two previous decisions of this Court have dealt with the jurisdiction of the Board in connection with subsection 70(1). In Canada (Minister of Employment and Immigration) v. Selby, [1981] 110 D.L.R. (3) 126 (F.C.A.) at pages 128-129, Chief Justice Thurlow concluded that the IAD has jurisdiction to hear evidence and determine the facts upon which the right to appeal depends. Later in the case of Canada (Minister of Employment and Immigration) v. Restrepo, [1989] 8 Imm.L.R. (2d) 161 (F.C.A.), Pratte J.A. dealt with the position of an appellant who was not entitled at law to appeal before the IAD. At page 164 he states:
It is certain that the Board could not allow an appeal under s. 72(1)(b) [now 70(1)(b)] of the Immigration Act unless the said appeal was made by a person entitled by law to appeal before the Board. In the present case, the respondent was entitled to appeal before the Board only if he was a permanent resident.
The Motions Judge took issue with the Board's analysis that it lacked jurisdiction over a person who was not a permanent resident for the following reasons:
In my opinion, a proper interpretation of s. 70(1) allows a person who is a permanent resident, but for the decision of an adjudicator, to appeal the decision of the adjudicator that he or she is not a permanent resident, to the IAD for appellate review on the grounds founded in either s. 70(1)(a) or s. 70(1)(b), or both. I find that, if in the drafting of s. 70(1), it was intended that such a person is to be excluded from the appeal benefit conferred by s. 70(1), this would have been precisely stated. Since it is not, I find that the IAD has jurisdiction under s. 70(1) in such a case.
In my analysis, this conclusion ignores the legal definition of permanent resident found in subsection 2(1) of the Act which expressly excludes a person who has ceased to be a permanent resident pursuant to section 24 of the Act. It also ignores the Selby and Restrepo decisions which remain good law.
The issue of abandonment under section 24 is an issue of fact upon which the right to appeal depends. Where the issue of abandonment is decided by the Board against the person concerned, as is the case here, the Board is without jurisdiction to grant relief under paragraph 70(1)(b).
In my view, the conclusion reached by the Motions Judge as to the jurisdiction of the Board constitutes an error of law.
F. Board's Findings of Fact
In this case, the Board was required to conduct an analysis of the evidence presented in order to determine credibility and to make findings of fact. In my analysis, the standard of judicial deference to be afforded the Board's factual findings in relation to section 24 and subsection 70(1) of the Act is one of patent unreasonableness: see Canada (Minister of Citizenship and Immigration) v. Park, [2001] F.C.J. No. 289 (F.C.T.D.) at paragraph 12; Perkins v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1759 (F.C.T.D.) at paragraphs 16 and 18; Canada (Minister of Citizenship and Immigration) v. Owens, [2000] F.C.J. No. 1644 (F.C.T.D.) at paragraphs 30 and 31.
In this case, one of the factual issues before the IAD was whether Mr. Jessani knew, when he left Canada or at any time during his absence, that the Act imposed a limit on the length of his absence. In essence, the issue was whether the respondent knew that if he remained outside Canada for more than six months, he would be deemed to have lost his permanent resident status by operation of subsection 24(2) of the Act. This issue was important because, as indicated earlier, the respondent falsely misstated the length of his absence on a Customs form that he completed on his return to Canada. The Board drew the inference that Mr. Jessani knew that admitting to a lengthy absence would be detrimental to him.
The Motions Judge took issue with the IAD's finding that the respondent effectively knew nothing of the 183 day-rule respecting consecutive time allowed to be out of the country. He wrote:
I am satisfied that, on the face of the record, the finding the Applicant "knew effectively nothing about the 183 day rule" is erroneous. The transcript clearly shows that he knew at least six months after he left Canada.
On the face of the decision, there is no way to determine the extent to which this negative finding impacted on the IAD's interpretation of other elements of the Applicant's evidence, but I am satisfied that any doubt about this should be removed, and in fairness, in the Applicant's favour.
Therefore, I find that pursuant to s. 18.1(3)(d) [sic] of the Federal Court Act that the IAD's decision was made without regard for the material before it.
Respectfully, the IAD did not make the factual finding that the Motions Judge attributes to it. The Board never made a categorical finding of fact that Mr. Jessani knew nothing of the time limit. Rather, it concluded to the contrary, that the respondent was aware of the time limit and drew a negative inference as a result. Specifically, the Board found:
The appellant has assertedon more than one occasion in his testimony that he knew nothing of, as he put it, "terms and conditions" associated with his granted permanent residence status and that he effectively knew nothing of the 183-day rule respecting consecutive time allowed to be out of the country in any 12-month period. He states he made no inquiries about this. I find this not to be credible. In a form required to be filled out by Canada Customs and date-stamped by them 18 March 1997, the appellant declared that he had left Canada in August 1996. If he were so unaware of the rules, why would he feel the need to make this false statement? Simply because I find he was aware of them but had chosen to ignore them.
[Emphasis Added]
The Motions Judge erred in concluding that the Board's decision was made without regard to the material before it. The Motions Judge's conclusion ignored the actual findings of fact made by the Board based on the evidence which clearly supported its findings and were not patently unreasonable.
G. Conclusion
I would allow the appeal, set aside the order of the learned Motions Judge and dismiss the Respondent's application for judicial review pursuant to paragraph 52(b)(i) of the Federal Court Act.
The certified question should be answered as follows:
When an adjudicator has found that a person has lost permanent residence by application of s. 24 of the Immigration Act, the Board must, in determining whether it has jurisdiction over the appeal, determine whether the adjudicator correctly decided whether the person has lost permanent residence. If the Board concludes that the adjudicator correctly decided that the person has lost permanent residence, then the Board has no jurisdiction to consider the appeal under s. 70(1)(b) of the Immigration Act.
"B. Malone"
J.A.
"I agree" "Julius A. Isaac"
J.A.
"I agree" "J. E. Sexton
J.A.
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