Date: 19980302
Docket: IMM-802-98
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
THE IMMIGRATION AND REFUGEE BOARD,
APPEAL DIVISION,
- and -
WALTER GONZALES TOLEDO
Respondents
REASONS FOR ORDER
GIBSON J.:
[1] These reasons arise out of a motion on behalf of the applicant for an interim order of prohibition preventing the Immigration and Refugee Board, Appeal Division, (the "Appeal Division") from re-hearing the appeal of the deportation order issued against the respondent, Walter Gonzales Toledo ("Toledo") until such time as this Court disposes of the applicant's underlying application for judicial review. Both the application for interim relief and the underlying application for judicial review were filed with the Court at Winnipeg, Manitoba on the 24th of February, 1998. In the underlying application, the applicant seeks leave of this Court to commence an application for judicial review of:
| The jurisdiction of the Immigration and Refugee Board - Appeal Division to rehear the appeal of the deportation order issued against Walter Gonzales Toledo scheduled on March 6, 1998. [emphasis added] |
[2] The background to the application for interim relief and the underlying application may be briefly summarized as follows. Toledo is a native and citizen of Guatemala. He arrived in Canada in September of 1986 and was granted landing in 1990. In 1993, he pled guilty to a charge or charges of sexual assault against a minor. He was sentenced to a term of imprisonment of thirty months. He was ordered deported. He appealed the deportation order to the Appeal Division and his appeal was dismissed. He sought leave to commence judicial review of the decision of the Appeal Division. His application for leave was dismissed. Arrangements to implement the deportation order issued against Toledo were commenced.
[3] On the 8th of August, 1997, prior to implementation of the deportation order, Toledo filed an application to reopen his appeal to the Appeal Division. He was deported on the 29th of September, 1997. By order dated the following day, and signed on the 16th of October, 1997, the Appeal Division granted Toledo's application to reopen. Judicial review was not sought of that decision.
[4] The hearing for Toledo's reopened appeal to the Appeal Division has been scheduled for the 6th of March, 1998. In anticipation of that hearing, by Order dated the 16th of January, 1998 and signed the 3rd of February, 1998, the Appeal Division ordered that Toledo be allowed to return to Canada for the hearing of his appeal. Once again, judicial review of that decision was not sought.
[5] The applicant's application for interim relief was heard by teleconference in the afternoon of the 27th of February, 1998. At the opening of the teleconference, the Court raised the issue of whether or not the application for interim relief was properly founded in an application for leave and for judicial review. As indicated earlier, the application for leave and for judicial review purported to be brought in respect of "[t]he jurisdiction of the... Appeal Division to rehear the appeal of the deportation order issued against... Toledo scheduled on March 6, 1998."
[6] Subsection 18.1(1) of the Federal Court Act1 provides that an application for judicial review may be made by the Attorney General of Canada or by anyone directly affected "...by the matter in respect of which relief is sought." In Her Majesty in Right of Alberta v Canadian Wheat Board,2 I wrote:
| Other subsections of section 18.1 and related Federal Court Rules [C.R.C. 1978, c. 663 (as amended)] imply the types of matters in respect of which relief can be sought by way of judicial review are somewhat circumscribed. For example, subsection 18.1(2) limits the time within which judicial review "...in respect of a decision or order of a federal board, commission or other tribunal..." may be sought. Subsection 18.1(3), which deals with remedies that the Trial Division may provide on judicial review, speaks in part of "...a decision, order, act or proceeding of a federal board, commission or other tribunal." Subsection 18.1(4), dealing with the circumstances in which the Trial Division may grant relief, refers to error of law "...in making a decision or an order," and decisions and orders based on erroneous findings of fact. Rule 1602(2)(f) of the Federal Court Rules provides that an application for judicial review shall "...set out the date and details of the decision, order or other matter in respect of which judicial review is sought". Rule 1602(4) provides that a notice of motion shall be in respect of a single decision, order or other matter only,...". [emphasis added] |
Taken in context, I conclude that the reference to "matter in respect of which relief is sought" in subsection 18.1(1) of the Federal Court Act cannot be interpreted to extend to the jurisdiction, on the facts of any particular case, of a federal board, commission or other tribunal. Jurisdictional error is a ground on which judicial review may be sought and granted in respect of a decision, order or like matter. Jurisdiction simpliciter of a federal board, commission or other tribunal is not, of itself, such a matter.
[7] Counsel for the applicant urged that the interpretation of the scope of judicial review that I have adopted would lead to an anomalistic result on the facts of this matter. As indicated earlier, Toledo was deported from Canada on the 29th of September, 1997. The decision of the Appeal Division to reopen Toledo's appeal of his deportation order was taken the next day. Evidence of the fact of deportation was, I was advised, not before the Appeal Division on the date of its decision to reopen. Thus, counsel argued, if the applicant had sought judicial review of the Appeal Division's decision to reopen, this Court could not have had before it evidence that Toledo had been deported prior to the reopening because an application for judicial must be conducted on the record that was before the tribunal that took the decision under review.3
[8] I have previously recognized an exception to the general rule restricting the evidence that may be before this Court on judicial review to that which was before the federal board, commission or other tribunal. In Kenbrent Holdings Ltd. v. Atkey,4 I wrote:
| Affidavit evidence was filed with the Court both on behalf of the applicants and the respondent. ...Counsel for the parties acknowledged that much of it was new evidence relating to issues that were not argued before the adjudicator or, presumably from the face of his reasons, considered by him. Generally speaking, it is the nature of judicial review to determine whether or not the decision of the board, commission or other tribunal that is under review was open to it on the evidence that was before it. Thus, new evidence is irrelevant to the judicial review, I am satisfied that an exception to this principle exists where the issue in question is one of the jurisdiction of the federal board, commission or other tribunal the decision of which is under review. [citations omitted and emphasis added] |
[9] I am satisfied that evidence that Toledo was deported before the decision of the Appeal Division to reopen Toledo's appeal was taken is evidence that goes to the Appeal Division's jurisdiction and as such could properly have been before the Court on judicial review of that decision.
[10] I conclude that, in essence, the applicant has come before this Court seeking leave and judicial review, and related interim relief, on the basis of jurisdictional error, in respect of the decision of the Appeal Division to reopen Toledo's appeal. While that is not the form in which the application for leave and judicial review is structured, it is the essence of that application. The time for seeking leave and judicial review in respect of the decision to reopen is long expired. No application for an extension of time with an appropriate justification therefore has been filed. I am not prepared to permit the applicant to do indirectly that which it failed to seek to do directly, within the time provided, or for that matter, outside of the time provided, with a related application for extension of time.
[11] The applicant's application for interim relief, being based on an application for leave and for judicial review filed late and in respect of an issue outside the scope of judicial review, cannot succeed. In the result, the application for interim relief is dismissed.
______________________________
Judge
Ottawa, Ontario
March 3, 1998
__________________1 R.S.C. 1985, c. F.-7 (as amended)
2 [1997] F.C.J. No. 1482 at paragraph 16 (under appeal). [not cited before me]
3 See Rahi v Minister of Employment and Immigration , 28 May 1990, 90-A-1343 (F.C.A.), per Macguigan J.A. [not cited before me]
4 (1995), 94 F.T.R. 103 at paragraph 7. See also: The Sovereign Life Insurance Company v. the Minister of Finance, 11 December 1996, T-3105-92, Order, (F.C.T.D.) where, without reasons, two affidavits going to the question of jurisdictional error were added to a statutory appeal case notwithstanding that, in their context, they constituted evidence that was not before the statutory decision maker. [Neither of the foregoing decisions was cited before me]