Federal Court Decisions

    

             IMM-408-96

B E T W E E N:

     MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     AMARJIT SINGH

     Respondent

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of a decision of the Appeal Division (" the Tribunal") of the Immigration and Refugee Board wherein the Tribunal determined that, although the decision of an officer of the applicant to deny landing in Canada of the respondent's alleged spouse as a member of the family class was "... in accordance with the law," there existed compassionate or humanitarian considerations that warranted the granting of special relief. The decision of the Tribunal is dated the 6th day of December, 1995. It purports to have been made under section 77 of the Immigration Act.¹

     The substance of the Tribunal's reasons for decision is in the following terms:

The facts as I find them before me are as follows. Amarjit Singh was born 2 July 1954, in Bagawal Hoshiapur, India, a village of some 60 households where his father was a priest. Mr. Singh is also a priest. On two occasions he applied for visitors visas to come to Canada to practice his religious calling. On the first application, dated 10 July 1984, he signed the application where he had indicated that he was married to Surinder Kaur. On 22 January 1986, he signed another application, in this case also listing Surinder Kaur as his spouse. He denies having been married to Surinder Kaur. In both cases he claimed some one filled the form out for him. Mr. Singh returned to India for approximately six months to be with his wife, Ravinder Kaur. A few months after he obtained Canadian citizenship his wife gave birth to their daughter.

Mr. Singh's purpose in coming to Canada was to preach at the Temple here. In my mind this makes his lie all the more egregious. It is troublesome at the same time that he pleads for forgiveness and persists in blaming the writers of the applications. Another disquieting aspect are [sic] his contradictory reasons for leaving the Priesthood. Mr. Singh would have me believe that he left as a penance for his lying and the ensuing misery he has caused, both to himself and to his family. At the same time he cites dissention in the temple ranks as the reason. Which is it? I do not know. Mr. Singh is responsible for his lie, he cannot hide behind ignorance of the purpose for it. He now has a wife and child in India.

I see no reason to keep this family apart despite Mr. Singh's serious breach of trust, all the more serious because he is a religious man, a preacher. Nonetheless, he has established himself in Canada and there is no evidence that he is not a law-abiding citizen.

The letter of refusal is valid in law. This appeal is allowed pursuant to Section 77 (3) (b) of the Immigration Act.

Thus, while the Tribunal upheld the decision rejecting the sponsored application for landing of Ravinder Kaur on the basis that the respondent was not free to marry her by reason of a previous marriage, and found the respondent's lies to be "egregious" and a "serious breach of trust", it nonetheless referred to Ravinder Kaur as the respondent's "wife" and a member of his family and concluded reunification of the respondent's "family" in Canada constituted humanitarian or companionate considerations warranting a decision in the respondent's favour.

     The situation was rendered more confusing by the following statements made by the presiding member of the Tribunal at the close of the hearing that took place before the Tribunal some five months before the written decision and reasons were issued:

All this notwithstanding I see no reason to keep this family apart despite his serious breach of trust. I say serious because he is a religious man, one who is a preacher. This appeal is being -- the Letter of Refusal is valid. This appeal is allowed pursuant to Section 77(3)(b).

....

...I'd wish to delete my final statement that the Letter of Refusal is valid in law and that the appeal is allowed pursuant to Section 77(3)(a) That is incorrect. I will state that the Letter of Refusal is not valid in law. This appeal is allowed pursuant to Section 77(3)(a).....

The first statement made by the presiding member is obviously consistent with the decision entered and the written reasons. The latter statement, purportedly correcting the first statement, is, of course, inconsistent with the decision entered and the written reasons.

     Before me, counsel for the applicant argued that the decision entered and the written reasons of the Tribunal constitute the "decision" of the Tribunal, whatever the presiding member might have said at the close of the hearing. In that decision, the Tribunal having concluded that the Immigration Officer's rejection of the respondent's sponsorship of Ravinder Kaur was in accordance with law because the respondent was previously married and not free to marry Ravinder Kaur, the Tribunal must have concluded that Ravinder Kaur was not the spouse of the respondent and therefore not a member of the family class in relation to the respondent. In such circumstances, the Tribunal lacked jurisdiction to consider the matter under section 77 of the Immigration Act and therefore erred in its finding of humanitarian or compassionate considerations justifying a decision in favour of the respondent. Further, counsel argued that a finding of humanitarian or compassionate considerations warranting reunification of a family when, on the face of the same decision, the Immigration Officer's decision that Ravinder Kaur was not the respondent's spouse, was perverse.

     Counsel for the respondent argued that there was a "slip" or "error" in the decision of the Tribunal as entered that should be corrected so that the decision as entered would conform with the final statement of the presiding member of the Tribunal made at the close of the hearing. In support of his position, counsel referred to Chandler v. Alberta Association of Architects² at page 861:

As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, because there has been a change of circumstances. It can only do so if authorized by statute or there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J.O. Ross Engineering Corp.3

     On the material before me, and taking into account the submissions of counsel, I am satisfied that the "slip" or "error" that is apparent in this matter appears in the statements of the presiding member of the Tribunal at the close of the hearing before the Tribunal and not in the decision entered which is supported by the written reasons. The fact that the decision entered and the written reasons are inconsistent with the final position of the presiding member at the close of the hearing, while most unfortunate, is of no consequence. In Shairp v. M.N.R.⁴, Mr. Justice Marceau stated:

.... until judgment is filed the pronouncement of a judge, even made in open court and in the presence of a registrar, is merely an expression of opinion and a declaration of intention, which in law have no decisive effect and therefore remain subject to reconsideration. One would certainly assume that only extraordinary circumstances would a judge, who sees fit, at the end of a hearing to publicly pronounce his reasoned opinion and express his intention as to how he will dispose of the case, would later present differing reasons and a completely different judgment. But his jurisdiction to do so would seem to me to be unfettered if he continues to be seized of the matter as obviously he does.

     The Tribunal having concluded, as it did, that the rejection of Surinder Kaur's application for landing was valid in law, and that rejection having been based on a conclusion that Surinder Kaur was not a member of the family class, the Tribunal lacked jurisdiction under section 77 of the Immigration Act to consider the respondent's appeal.⁵ Thus, the Tribunal was without jurisdiction under section 77 to allow the respondent's appeal on the basis of humanitarian or compassionate considerations.

     For the foregoing reasons, this appeal must be allowed and the decision of the Tribunal set aside. Given my conclusion that the Tribunal made no error in finding the decision of the Immigration Officer that was before it was in accordance with law and that therefore the Tribunal lacks jurisdiction in respect of this matter, no purpose would be served by referring the matter back to the Immigration and Refugee Board.

     In light of the foregoing conclusion, I need not turn to the question of whether or not the Tribunal's finding of humanitarian or compassionate considerations justifying a decision in favour of the respondent was perverse. I decline to do so.

     As indicated in footnote 4 to these reasons, the Shairp decision on which I have relied was not cited before me. In the result, when I consulted counsel on the question of whether or not my decision in this matter raises a serious question of general importance warranting certification under subsection 83(1) of the Immigration Act, counsel for the Respondent requested time to consider the Shairp decision and any related jurisprudence and to file written submissions. I agreed to this request. Counsel for the Applicant indicated no certification was warranted and no written submissions would be made. Within the time constraints agreed upon, counsel for the Respondent submitted the following questions for certification:

1.      When is a judgment final? If an oral decision has been rendered by the Immigration Appeal Division, does the Board have the jurisdiction to substantially alter that decision as suggested in the Federal Court of Appeal decision of Shairp v. M.N.R., or does the Board not have the jurisdiction to do so as held in the Federal Court of Appeal decision of Canada (M.E.I.) v. Restrepo?6

2.      If the Board does have jurisdiction to substantially alter its oral decision, can it only do so in exceptional circumstances?

I have reviewed the Restrepo decision to which counsel has referred me and conclude that it is inapplicable on the facts before me. In that case, according to the reasons of Mr. Justice Pratte, the Immigration Appeal Board rendered a decision on April 7, 1987 which appears from the face of the reasons to have been in writing and recorded. The unsuccessful party filed an application for permission to appeal the decision. Before permission was granted, in response to a request from the unsuccessful party, the I.A.B. issued written reasons and the Registrar of the I.A.B. signed an "amended" decision substantially differing from the original decision. Mr. Justice Pratte wrote:

On September 1, 1987 the Board had no further jurisdiction over this matter on which it had already ruled on April 7 by rendering a decision that it could no longer amend. It would have been otherwise, of course, if the decision of September 1 had merely been intended to correct a material error in the decision of April 7. But such was not the case. The second decision is substantially different from the first one, and there is nothing in the Board's reasons that indicates that the error that was to be corrected was only a material error.

     I find no inconsistency between the Shairp decision and that in Restrepo. In Shairp, on the facts before him, Mr. Justice Marceau found that a judge who has made a pronouncement from the bench has merely engaged in an expression of opinion if judgment has not been filed and the judge continues to be seized of the matter. That is the case in this matter on the facts before me. It was not the case in Restrepo.

     I acknowledge that the facts in Shairp are somewhat different from those in this matter and that the "about-face" made by the Tribunal in this matter represents a substantially greater change from the expression of opinion given from the "bench" by the Tribunal, putting the best face on that expression from the bench from the point of view of the Respondent herein. I conclude that the distinction on the facts does not detract from the principle expressed by Mr. Justice Marceau in Shairp. I conclude that the law is well settled on this point.

     In the result, no question will be certified.

___________________________                               Judge

Toronto, Ontario

October 18 , 1996

__________________

¹R.S.C. 1985, c.I-2

²[1989] 2 S.C.R. 848

³[1934] S.C.R. 186

⁴[1989] 1 F.C. 562) (F.C.A.) (not cited before me).

⁵See Sheriff v. the Minister of Employment and Immigration, Court File A-152-93, November 2, 1995 (unreported) (F.C.A.)

⁶(1989), 8 Imm.L.R. (2d) 161 (F.C.A.)