Date: 19980203
Docket: IMM-2360-97
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THE MINISTER OF CITIZENSHIP |
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[1] The Minister asks, in effect, for certiorari to quash and set aside the decision of a tribunal of the Immigration Appeal Division (IAD) whose reasons were signed by the tribunal member on May 14, 1997, and certified on May 22, 1997 in the IAD's case V95-02334. The member had followed the decision of this Court's Trial Division in the case of Athwal v. M.C.I. [1997] 1 F.C. D-54/F-68, and had dismissed a motion by the Minister requesting the IAD to dismiss respondent Truong's appeal for lack of jurisdiction. |
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[2] The question of jurisdiction arose as a consequence of the coming into force on July 10, 1995, of subsection 70(5) of the Immigration Act, R.S.C. 1985, Chap I-2, which provides: |
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"No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be |
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(a) a member of an inadmissible class described in paragraph 19(1)(c), (c.1), (c.2) or (d); |
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(b) a person described in paragraph 27(1)(a.1); or |
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(c) a person described in paragraph 27(1)(d) who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed. |
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[3] On June 27, 1995, the respondent Truong was ordered to be deported by an adjudicator, on the ground that he is a person described in sub-paragraphs 27(1)(d)(i) and (ii) of the Act. The respondent lodged a notice of appeal from that deportation order at the end of the enquiry. |
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[4] Then, the Minister of Citizenship and Immigration (the applicant herein) issued an opinion pursuant to subsection 70(5) of the Act, dated February 25, 1997, to the effect that the respondent constitutes a danger to the public in Canada. On March 10, 1997, the Minister's opinion was communicated to the IAD. Pursuant to its authority under its rule 39, the IAD regarded the filing of the opinion as a motion to dismiss Truong's appeal for lack of jurisdiction. |
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[5] On May 14, 1997, the IAD rejected the motion to dismiss the respondent's appeal for want of jurisdiction on the basis of, and adopting, the reasoning of Mr. Justice Dubé of this Court, in the above cited case of Balbinder Singh Athwal v. M.C.I., IMM-1458-96 (January 23, 1997). Now, the issue presently before this Court is whether the IAD erred in dismissing the Minister's motion for dismissal of Truong's appeal under section 70, for want of jurisdiction. |
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[6] In June of 1995, during the enquiry the report under section 27 was presented to the adjudicator, and it showed that the respondent Truong was convicted, in Vancouver: |
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- on October 21, 1991 of an offence under section 267(1)(a) of the Criminal Code for which a term of imprisonment of 12 months was imposed; and |
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- on February 25, 1992 of an indictable offence under section 91 [sic] of the Criminal Code for which a term of imprisonment not exceeding 10 years may be imposed. |
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In response to the adjudicator's question Truong's counsel said: "My client does not dispute that he was convicted of the offenses that you have read out." (Transcript app's record p. 18) |
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[7] A copy of the record in the Supreme Court of British Columbia (exhibit H to Michael McPhalen's affidavit) shows that in relation to the conviction under section 267(1)(a), assault with a knife, a term of two years' imprisonment was imposed on the respondent. Exhibit I to Michael McPhalen's affidavit shows that in relation to the conviction under subsection 90(1), having in his possession a prohibited weapon, a 12 gauge sawed-off shotgun, a term of 4 months' imprisonment was imposed on the respondent. Other convictions for criminal offenses are recorded in the documents, but they are extraneous to the present consideration, except to dilute any sympathy for the applicant. |
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[8] The pertinent provisions of the Criminal Code are as follows: |
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90.(1) Everyone who has in his possession a prohibited weapon |
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(a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding ten years; or |
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(b) is guilty of an offence punishable on summary conviction. |
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267.(1) Everyone who, in committing an assault |
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(a) carries, uses or threatens to sue a weapon or an imitation thereof, or |
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is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years. |
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[9] Now, the IAD made these findings: |
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The adjudicator found that the appellant was a permanent resident and that he had been convicted of an offence under an Act of Parliament for which a term of imprisonment of 5 years or more may be imposed. As this covers all of the elements set out in paragraph 27(1)(d), it is my belief that she in fact did find the appellant to be a person described in paragraph 27(1)(d) of the Act. She also signed the deportation order which contains this express statement. Furthermore, the appellant through counsel confirmed that he was convicted of offenses for which the liability is imprisonment for a term not exceeding ten years, when the offenses were read out by the adjudicator. This concession results in no need for the Minister's representative to lead evidence of the offenses, according to my reading of the decision in Athwal. The issue remains whether a concession of certain facts by an appellant in a hearing constitutes a determination made by an adjudicator as required pursuant to section 70(5) of the Act. The adjudicator summarized her determination thus: |
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In light of the concession of facts and the documents presented, I find the allegation made against you has been established and that you are a permanent resident who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of more than six months has been imposed, and convicted of an offence under any Act of Parliament for which a term of imprisonment of five years or more may be imposed. |
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Following the Federal Court decision in Athwal, and notwithstanding the concessions made by the appellant, it is my view that the adjudicator still failed to make the determination required pursuant to section 70(5)(c) of the Act, namely that the appellant has been convicted under any Act of Parliament for which a term of imprisonment of 10 years or more may be imposed. Given the appellant's concession, it was open to the adjudicator to do so, but she did not. |
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Dubé, J. in Athwal states that it is vital that a strict interpretation of subsection 70(5) of the Act be adhered to. Given the fact that a determination by an adjudicator removes an individual's right of appeal, it is essential that the adjudicator make a determination of all of the elements required pursuant to subsection 70(5). This the adjudicator failed to do in the present case, even though the appellant conceded his convictions, which clearly indicate that the offenses he committed are punishable by imprisonment for a term not exceeding 10 years. |
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[10] The IAD came to a curious conclusion there. It is crystal clear on the facts recited by the IAD member that the adjudicator complied with subsection 70(5) such that the respondent Truong had indeed "been a person determined by an adjudicator to be ... (c) a person described in paragraph 27(1)(d)" of the Immigration Act. This error of law is of sufficient magnitude for this Court to quash the IAD's determination and disposition of Truong's appeal. |
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[11] However, since the above stated quashing of the IAD's disposition does nothing to displace that tribunal's jurisdiction, it behooves this Court to deal with the issue of jurisdiction on which the parties came before the Court. |
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[12] On February 25, 1997, the Minister's delegate, pursuant to paragraph 70(5)(c) of the Act (earlier above recited) issued an opinion that Mr. Truong constituted a danger to the public in Canada, (Michael McPhalen's exhibit A). On March 10, 1997, the appeals officer wrote to the IAD seeking an order that Truong's appeal be dismissed for lack of jurisdiction, pursuant to subsection 70(5) of the Act, (M. McPhalen's exhibit J). After considering each side's submissions, the IAD dismissed the motion on the curious ground that the adjudicator had not made a determination that Truong had been convicted of an offence under an Act of Parliament for which a term of imprisonment of 10 years or more may be imposed. |
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[13] In a recent decision the Federal Court of Appeal heard and determined an appeal from the Trial Division's decision in Athwal. Counsel requested the Court to dispose of this case on the record. The respondent's counsel urges this Court to ignore that judgment of the appeal Court because that "Court misconstrued the meaning of the decision of the Supreme Court of Canada in McIntosh" [1995] 1 S.C.R. 686. The Federal Court of Appeal, in Athwal, including its interpretation of McIntosh's meaning, is binding on this Court. |
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[14] In Athwal, A-67-97 (September 11, 1997), on appeal, and despite the admittedly clear expression of subsection 70(5), the Court of Appeal determined that paragraph 70(5)(c) of the Immigration Act does not require an adjudicator to determine that the subject of enquiry was convicted of an offence for which a term of 10 years or more may be imposed. That determination can be found in the adjudicator's decision, without being specifically expressed. The applicant submits that the facts in this present "case are directly on point with those in Athwal" and that the appeal Court's reasons in Athwal are dispositive of the case at bar. That is true, although this Court thinks that the adjudicator, in these circumstances, did in fact make the determination of the elements edicted by subsection 70(5), despite the fact that all others involved in the case at bar seem to think not. |
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[15] Because this Court finds: |
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1) that the adjudicator herein did, in fact, determine that Mr. Truong was or is a person described in subparagraphs 27(1)(d)(i) and (ii) of the Immigration Act; and |
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2) that the recent decision of the Federal Court of Appeal is binding on this Court, is dispositive of the present case, and does not require the adjudicator to make the determination under subparagraphs 27(1)(d)(i) and (ii) pursuant to subsection 70(5) of the Immigration Act; and |
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3) that Parliament was abundantly clear in subsection 70(5) in enacting that "no appeal may be made to the Appeal Division by a person ..." in Quoc Huan Truong's plight, |
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the decision and order of the IAD signed on May 14, 1997, in case V95-02334 will be quashed and this matter referred to a differently constituted tribunal of the Immigration Appeal Division for determination in accordance with the law as enunciated the decision of the Federal Court of Appeal in Athwal v. M.C.I., and in accordance with this Court's reasons herein. The IAD lacked jurisdiction in these circumstances. Both counsel agree that no question is to be certified. |
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Vancouver, British Columbia |
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-2360-97
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION, |
Applicant
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QUOC HUAN TRUONG,
Respondent.
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: January 28, 1998
REASONS FOR ORDER OF THE COURT BY: MULDOON, J.
DATED: February 3, 1998
APPEARANCES:
Andrew Wlodyka for Respondent
Brenda Carbonell for Applicant
SOLICITORS OF RECORD:
Andrew Wlodyka for Respondent
| Lawrence, Wong & Associates |
| George Thomson for Applicant |
Deputy Attorney General of Canada