Edouarzin v. Minister of Manpower and Immigration, (1974) 7 N.R. 203 (FCA)

JudgePratte, J., Hyde, D.J. and St-Germain, D.J.
CourtFederal Court of Appeal (Canada)
Case DateOctober 29, 1974
JurisdictionCanada (Federal)
Citations(1974), 7 N.R. 203 (FCA)

Edouarzin v. MMI (1974), 7 N.R. 203 (FCA)

MLB headnote and full text

Edouarzin v. Minister of Manpower and Immigration

Indexed As: Edouarzin v. Minister of Manpower and Immigration

Federal Court of Appeal

Pratte, J., Hyde, D.J. and St-Germain, D.J.

October 30, 1974.

Summary:

This case arose out of an application by a Haitian citizen for admission to Canada as a visitor. The Immigration Officer who interviewed the alien was of the opinion that the alien could not be admitted into Canada. A Special Inquiry Officer was appointed. On February 23, 1973 the Special Inquiry Officer ordered that the alien be deported. The alien then filed a notice of appeal to the Immigration Appeal Board. The Immigration Appeal Board heard the alien's appeal on July 12, 1974. At the hearing on July 12, 1974 the alien testified that on May 28, 1973 he was married at Montreal and that a child of the marriage was born at Montreal in May 1974. The alien asked the Immigration Appeal Board to exercise in his favour the powers conferred on the board by s. 15(1) of the Immigration Appeal Board Act. The wife of the alien testified at the hearing that an Immigration Officer told her that she could marry the alien "without causing a problem". The Immigration Appeal Board declared such testimony by the wife to be hearsay and inadmissible. The Immigration Appeal Board ordered the deportation of the alien.

On appeal to the Federal Court of Appeal the appeal was allowed and the deportation order was set aside. The Federal Court of Appeal stated that the testimony of the wife with respect to her conversation with the Immigration Officer was not hearsay evidence and was admissible. The Federal Court of Appeal stated that if such an error had not been made it is possible that the Board's decision would have been different - see paragraph 7. The Federal Court of Appeal referred the case back to the Immigration Appeal Board for rehearing.

S. 28(1) of the Federal Court Act states: "28(1) Notwithstanding section 18 or the provisions of any other Act, the Court of Appeal has jurisdiction to hear and determine an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a federal board, commission or other tribunal, upon the ground that the board, commission or tribunal (a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction; (b) erred in law in making its decision or order, whether or not the error appears on the face of the record; or (c) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it."

Courts - Topic 4085

Federal Court of Canada - Jurisdiction of the Federal Court of Appeal respecting decisions of boards - Federal Court Act, s. 28 - At a deportation hearing the Immigration Appeal Board excluded admissible evidence respecting the marital status of the alien in question - The Board made a deportation order against the alien - The Federal Court of Appeal set aside the deportation order and referred the case back to the Board for rehearing - The Federal Court of Appeal ordered that the Board at the rehearing admit the evidence respecting the marital status of the alien - The Federal Court of Appeal stated that the Board's decision might have been different if such evidence had been admitted at the original hearing.

Evidence - Topic 1504

Hearsay rule - General principles - What constitutes hearsay - At a deportation hearing before the Immigration Appeal Board the wife of the alien in question stated that she was told by an immigration officer that she could marry the alien "without causing a problem" - The Immigration Appeal Board declared the testimony by the wife to be hearsay and inadmissible - The Immigration Appeal Board deported the alien - The Federal Court of Appeal declared that the wife's testimony was not hearsay and was admissible evidence - See paragraphs 6 and 7.

Statutes Noticed:

Federal Court Act, R.S.C. 1970, 2nd Supp., c. 10, sect. 28(1) [see above].

Counsel:

C. Hargreaves, for the applicant;

Georges R. Leger, for the respondent.

This appeal was heard by the Federal Court of Appeal at Montreal, Quebec on October 29, 1974. Judgment was delivered by the Federal Court of Appeal on October 30, 1974.

The judgment of the Federal Court of Appeal was delivered by PRATTE, J.

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