Date: 19980505
Docket: IMM-2623-97
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
JAVIER EDUARDO ARANCIBIA
Respondent
REASONS FOR ORDER
HEALD, D.J.
[1] This is an application for judicial review by the Applicant Minister of a decision of the Appeal Division, of the Immigration and Refugee Board (the "Appeal Division") dated June 2nd, 1997. In that decision, the Appeal Division denied the applicant's motion to dismiss the respondent's appeal.
Facts:
[2] The respondent, a permanent resident, was granted landing on February 19, 1986. On May 15, 1996, he was convicted of robbery at Toronto, Ontario, and pursuant to section 344 of the Criminal Code, he was sentenced to 21 months imprisonment1.
[3] On December 18, 1996, the Minister's delegate issued an opinion pursuant to subsection 70(5) of the Immigration Act, that the respondent constitutes a danger to the public in Canada ("a danger opinion"). On February 5, 1997, a deportation order was issued pursuant to subsection 27(1)(d) of the Immigration Act. The adjudicator issuing the deportation order did not make an express finding that the respondent had been convicted of an offence for which a term of ten years or more could have been imposed. This fact will become an important circumstance in this application. On February 12, 1997, the respondent filed an appeal with the Appeal Division. That appeal is seemingly contrary to the provisions of subsection 70(5) of the Immigration Act. The Appeal Division concluded that the respondent had not lost his right of appeal and followed the decision of Dubé J. in Athwal v. Canada (M.C.I.). However, the Appeal Division member commented that had he been aware of the decision of Muldoon J. in Gonsalves v. Canada (M.C.I.)2 he would have decided differently.
Issue
[4] Whether an adjudicator is required to make an express finding that a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed before subsection 70(5) of the Immigration Act, operates to deprive that person of his right to appeal to the Appeal Division.
Analysis
[5] Subsection 70(5)(c) of the Immigration Act reads:
| (5) 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 |
| ... |
| (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. |
The issue stated, supra, arose because of the judgment of the Trial Division in Athwal v. Canada (M.C.I.)3 and in Gonsalves referred to supra. Subsequent to the decision in the case at bar by the Appeal Division, the Federal Court of Appeal allowed an appeal in the Athwal case, Robertson J.A., speaking for the Court of Appeal held:
| (a) that there is no provision in the Immigration Act which empowers an adjudicator presiding at a Section 27 inquiry to make findings of fact other than those necessary and essential for the purposes of Section 27 of that Act; |
| (b) as a consequence, the adjudicator lacks jurisdiction to make the kind of finding that this respondent says he is required to make before subsection 70(5)(c) can apply. |
[6] The Federal Court of Appeal gave a second reason for its conclusion in respect of subsection 70(5)(c). That subsection was accompanied by a transitional provision [subsection 13(4) of Bill C-44] when it was brought into force on July 10, 1995. The interpretation suggested by the respondent in respect of subsection 70(5)(c), creates an absurdity when the transitional provision is considered. That provision renders subsection 70(5)(c) retroactive. As a result, such an interpretation would preserve the right to appeal, contrary to the transitional provision, merely, because the adjudicator did not make a particular finding of fact during a time period when the relevant legislation was not even in force. On this basis, the Federal Court of Appeal concluded that the Immigration Appeal Division, and not the adjudicator, may properly make a subsection 70(5)(c) determination (that a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed). For this additional reason then, I conclude that the Immigration Appeal Division erred in law in refusing to dismiss the respondent's appeal.
[7] The respondent makes the further submission that the principle of functus officio prevents a challenge to the decision of the Appeal Division because of the decision of the Federal Court of Appeal in Athwal. I do not agree. The principle of finality of proceedings does not apply to the decision of a reviewing Court as to whether the Court or tribunal was correct. It is necessary, therefore, that subsequent jurisprudence be considered when it has developed prior to the decision of the reviewing Court.
Conclusion
[8] For the foregoing reasons, I have concluded that the decision of the Appeal Division was wrong in law and must be set aside. The appeal is allowed, the decision of the Appeal Division of the Immigration and Refugee Board dated June 2nd, 1997 is set aside and the matter is referred back to the Appeal Division for redetermination by a different member of the Appeal Division.
Certification
[9] Neither counsel suggested certification of a serious question of general importance pursuant to section 83 of the Immigration Act. I agree that this is not a case for certification.
"Darrel V. Heald"
D.J.
Toronto, Ontario
May 5, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2623-97
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
- and -
| JAVIER EDUARDO ARANCIBIA |
DATE OF HEARING: MAY 4, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: HEALD, D. J.
DATED: MAY 5, 1998
APPEARANCES:
Ms. Leena Jaakkimainen
For the Applicant
Mr. John J. Somjen
For the Respondent
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
For the Applicant
Somjen & Peterson
810-1240 Bay Street
Toronto, Ontario
M5R 2A7
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980505
Docket: IMM-2623-97
Between:
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Applicant
- and -
| JAVIER EDUARDO ARANCIBIA |
Respondent
REASONS FOR ORDER
__________________
1 The maximum sentence for a conviction pursuant to this section is imprisonment for life.
2 Gonsalves v. Canada (M.C.I.), January 23,1997, IMM-1458-96 F.C.T.D.
3 Athwal v. Canada (M.C.I.) May 9, 1997, IMM-1992-96 F.C.T.D.