Date: 20001109
Docket: IMM-356-00
BETWEEN:
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Applicant
-and-
ABDULLAH GHAFOUR SALEH
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] The Minister of Citizenship and Immigration (the "Applicant") seeks judicial review of a decision of the Immigration and Refugee Board, Appeal Division ("Appeal Division") made on January 17, 2000. In this decision, R. Hoare allowed the appeal of Abdullah Ghafour Saleh (the "Respondent") against the removal order which was issued on May 4, 1999.
[2] The Applicant seeks an order setting inside the decision and directing that the appeal be re-heard and redetermined before a different panel of this Appeal Division with a direction that the Appeal Division must assess its jurisdiction in light of the prior finding by R. Hoare that the Respondent is not a permanent resident.
[3] The Respondent is a citizen of Iraq. He came to Canada in August 1995, together with his wife and children. At this time, the Respondent and his family held valid immigration visas. After staying in Canada for some five weeks, the Respondent left, with his family. They returned to the Middle East where they stayed until returning to Canada in July 1997.
[4] The Respondent, his wife and children came back to Canada in July 1997, after an absence of more than 183 days. They did not hold valid immigrant visas or returning resident permits when they returned. Their entry into Canada precipitated an inquiry which led to the preparation of a report under section 20(1)(a) of the Immigration Act, R.S.C. 1985, c. I-2, as amended (the "Act"). This report stated the opinion of the port of entry officer that the entry of the Respondent (and his family) into Canada would be contrary to the Act and regulations. This report led to the conduct of an inquiry into the Respondent's status, pursuant to section 23(4.2)(a) of the Act.
[5] Following a hearing before A. Maartens, the adjudicator, a decision was delivered on May 4, 1999, finding that the Respondent was not a permanent resident. An exclusion order was issued on May 4, 1999 to the Respondent. This exclusion order also applied to his three children for whom the Respondent was the authorized representative. A separate exclusion order, also dated May 4, 1999, was directed to the Respondent's wife.
[6] On May 9, 1999, the Respondent and his wife filed Notices of Appeal under section 70 of the Act, appealing to the Appeal Division against the exclusion orders made against them.
[7] The appeal was heard on January 12, 2000 by R. Hoare, a member of the Appeal Division. By a decision made on January 17, 2000, the Appeal Division allowed the Appeals and ordered that the exclusion orders be quashed. The Appeal Division made the following order:
| ...The removal orders made the 4th day of May , 1999, are in accordance with the law but, having regard to the existence of compassionate or humanitarian considerations, the appellants should not be removed from Canada.1 |
[8] The Applicant seeks review of this order on the grounds that the Appeal Division erred in assessing its jurisdiction under section 70 of the Act by treating the Respondent's Appeal as falling within section 70(2), thereby making the equitable remedy provided by section 70(3) available to the appellants.
[9] The Applicant says the Appeal Division should have determined the status of the Respondent before it proceeded to dispose of the appeal on the equitable basis provided in section 70(3)(b).
[10] The Respondent filed a Notice of Appearance to the application for leave and judicial review filed by the Applicant. The Respondent also filed a Motion Record containing submissions. However, the Respondent did not appear upon the hearing of this application and oral submissions were made only on behalf of the Applicant.
[11] It is clear from the reasons that the Appeal Division proceeded under section 70(2) of the Act. It is equally clear that it should not have done so since that sub-section applies to an appeal only by a person who is a convention refugee or to a person who holds a valid Canadian visa, either as an immigrant or as a visitor to Canada. At the time of re-entry to Canada in July 1997, neither the Respondent nor his wife and children held valid visas. At no time did the Respondent seek entry into Canada as a Convention refugee, and section 70(1)(c) does not apply.
[12] In my opinion the Applicant's submissions on the issue of jurisdiction are well-founded. The Appeal Division should have first addressed its mind to the status of the Respondent, in order to determine how the appeal would proceed. In this regard, I refer to Canada (Minister of Employment and Immigration) v. Brendon Leeson Selby (1989), 8 Imm. L.R. (2d) 161. Since the Respondent did not meet the pre-requisites for an appeal under section 70(2), the Appeal Division had no jurisdiction to treat the Respondent's appeal under that sub-section. The Appeal Division had no authority to avail of the equitable remedy provided for a section 70(3)(b) since section 70(3) applies only in relation to appeals proceeding under section 70(2).
[13] The Appeal Division should have addressed the issue of the Respondent's status in order to determine which provisions of section 70 applied in his case. The threshold question is whether the Respondent was a "permanent resident" at the time the exclusion order was made on May 4, 1999. The answer to that question depends upon the application of section 2 of the Act, that is the definition of "permanent resident" and sections 24 and 25 of the Act, which require consideration of the intention of the Respondent vis-à-vis his status in Canada at the time he left in 1995.
[14] The Appeal should have proceeded on the basis of section 70(1) of the Act. This section also provides an appellant with protection against automatic removal, pursuant to sub-section 70(1)(b), as follows:
| on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
[15] As noted above, the Respondent on this application for judicial review is the principal representative of his three children who accompanied him to Canada. The notice of expulsion and subsequent appeal relate to the Respondent and his children. The disposition of this application will also apply to the Respondent's children. However, as pointed out by the Applicant upon the hearing of this matter, this Application does not name the Respondent's wife as a respondent.
[16] In the absence of an application for judicial review relative to the decision of the Appeal Division affecting the Respondent's wife, it appears that the decision in her favour would stand.
[17] In conclusion, the application for judicial review is granted. The order in favour of the Respondent made on January 17, 2000 is set aside and his appeal is remitted to the Appeal Division for re-hearing and re-determination before a different panel. I decline to issue any directions which may fetter the jurisdiction of that panel in considering the status of the Respondent as a "permanent resident" within the meaning of the Act.
[18] Counsel advised that there is no question for certification arising from this application for judicial review.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
November 9, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-356-00 |
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
-and-
ABDULLAH GHAFOUR SALEH
Respondent
| DATE OF HEARING: TUESDAY, NOVEMBER 7, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: THURSDAY, NOVEMBER 9, 2000
| APPEARANCES BY: Ms. A. Leena Jaakkimainen |
| For the Applicant |
| No Appearance |
For the Respondent
| SOLICITORS OF RECORD: |
Morris Rosenberg
Deputy Attorney General of Canada
| For the Applicant |
Abdullah Ghafour Saleh
1601 - 3655 Aristaway
Mississauga, Ontario.
L5A 4A3
For the Respondent
FEDERAL COURT OF CANADA
Date: 20001109
Docket: IMM-356-00
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
-and-
ABDULLAH GHAFOUR SALEH
Respondent
| REASONS FOR ORDER |
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