Date: 20000405
Docket: IMM-3280-99
BETWEEN:
SADRUDIN JESSANI
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The judicial review application in the present case concerns two issues: did the Immigration and Refugee Board Appeal Division ("the IAD") err in making the finding that, on the evidence, the Applicant abandoned his permanent residence status?; and did the IAD err in finding that it had no jurisdiction to act on "compassionate and humanitarian considerations" pursuant to s. 70(1)(b) of the Immigration Act ("the Act")?.
[2] The Applicant is a business person from Tanzania who initially came to Canada in March 1991, left approximately six months later, and returned in March 1997. In September, 1997, an adjudicator found that the Applicant had abandoned Canada as his place of permanent residence pursuant to s. 24 (2) of the Act and was not in possession of the necessary immigrant visa to permit him to remain in Canada as required in s. 9(1) of the Act.
[3] The Applicant appealed the adjudicator"s finding pursuant to s. 70(1) which 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, |
70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants : |
| (a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and |
a) question de droit, de fait ou mixte; |
| (b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
| [4] At the beginning of the hearing before the IAD the presiding member said this: |
| Now, if the decision is - - after we"ve heard it all if the decision is that the appellant is a permanent resident of Canada we need not deal with the compassionate and humanitarian considerations because that would be redundant. If the appellant, and again it"s my understanding of the Act and its"s getting better by the day counsel, if the appellant is found not to be a permanent resident then the compassionate and humanitarian considerations don"t exist because they apply only to permanent residents. (Tribunal Record, page 95.) |
| [5] After a full hearing, the IAD found that, indeed, the Applicant never established bodily residence in Canada, nor has he displayed any intention of so doing until issuance of the exclusion order in September, 1997. As a result, the IAD found that the Applicant was not a permanent resident, and, therefore, the IAD lacked jurisdiction to act pursuant to s. 70(1) of the Act. Thus, the appeal was dismissed. |
| A. Finding on the evidence |
| [6] In the reasons provided, the IAD found as follows: |
| The appellant has asserted on 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. |
| [7] 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.1 |
| [8] 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. |
| [9] Therefore, I find that pursuant to s. 18.1(3)(d) of the Federal Court Act that the IAD"s decision was made without regard for the material before it. |
| B. Finding on Jurisdiction |
| [10] 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 found in either s. 70(1)(a) or s. 71(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. |
| [11] Therefore, I find that, the IAD"s decision in the present case respecting jurisdiction is made in reviewable error. |
| ORDER |
| [12] Accordingly, on both the finding on the evidence and the finding on jurisdiction, I set aside the IAD"s decision. |
| C. Certified question |
| [13] Since the issue respecting jurisdiction is of general importance and determinative of the application in the present case, I state the following question for consideration by the Appeal Division: |
| "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?" |
| "Douglas R. Campbell" |
| J.F.C.C. |
| Toronto, Ontario |
| April 5, 2000 |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3280-99 |
| STYLE OF CAUSE: SADRUDIN JESSANI |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, APRIL 4, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
| DATED: WEDNESDAY, APRIL 5, 2000 |
| APPEARANCES: Mr. Timothy E. Leahy |
| For the Applicant |
| Mr. David Tyndale |
| For the Respondent |
| SOLICITORS OF RECORD: Mr. Timothy E. Leahy |
Barrister & Solicitor
5075 Yonge Street
Suite 408
Toronto, Ontario
M2N 6C6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000405
Docket: IMM-3280-99
Between:
| SADRUDIN JESSANI |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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