Federal Court Decisions

Date: 19971217

Docket: IMM-1035-97

BETWEEN:

     JORGE IVAN ZAPATA,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

MULDOON, J.

[1]      On March 12, 1997, the applicant sought leave to take judicial review proceedings to quash the decision of W.A. Sheppit, the Minister's delegate, dated February 25, 1997, wherein said delegate determined, pursuant to subsection 70(5) of the Immigration Act, that the applicant constitutes a danger to Canada.

[2]      In his affidavit sworn on March 23, 1997, the applicant swore:

5. On February 3, 1993, while I was highly intoxicated, I got involved in a fight which resulted in my conviction for assault causing bodily harm.

6. As a result of this incident, I was made the subject of an Immigration Report under section 27(1)(d)(i) of the Immigration Act. On January 6, 1997, a deportation order was issued against me. With the assistance of my lawyer, I immediately appealed the said decision to the Immigration and Refugee Board, Appeal Division.

The deportation is scheduled to be executed on April 2, 1997 at 10:00 a.m.

9. I have been advised by my lawyer that the presiding member [I.R.B. Appeal Division] who was scheduled to hear my appeal on March the 26th has requested that she prepare written submissions by Monday, March 24, on the issue of jurisdiction of the Appeal Division to hear my appeal in light of the Athwal v. M.C.I. decision.

10. My lawyer advises me that the Respondent will reply to these submissions on or before April 3rd and that she will be given an opportunity to respond by April 7th.

11. As my deportation is scheduled for the day before the Respondent's submissions are due and therefore before the Board will have had an opportunity to rule on the issue of jurisdiction, I feel that irreparable harm will be imposed on me. Until the Appeal Division has had a chance to review my lawyer's submissions on the issue of jurisdiction, I believe that it is unfair to deprive me of a meaningful opportunity to be heard. In fact, if I am deported on April 2nd, I will be deprived of my right to pursue my appeal before the Board.

The applicant's last conclusion must be read, if the Appeal Division be permitted to hear his appeal, in light of section 75 of the Act whereby he can be permitted to return to Canada in order to testify viva voce before the Appeal Division.

12. Furthermore, in the event that I am deported on April the 2nd, I will not be able to pursue my Judicial Review of the section 70(5) decision before the Federal Court.

This is wrong. Of course the applicant's judicial review application could be pursued. All the applicant needs to do is to provide his affidavit, if he chooses to do so; except for off-stage cross-examination, there is virtually no viva voce testimony on judicial review, only the lawyers' non-testimonial arguments.

[3]      What brings the present matter before this Court now is the applicant's attempt to stave off deportation until after the respondent's appeal against the Athwal decision is concluded.

[4]      Here and now the applicant is seeking:

an order enjoining the removal of the applicant from Canada until such time as the Immigration and Refugee Board - Appeal Division has ruled on the issue of whether it has jurisdiction to hear the applicant's appeal in light of the Athwal decision.

[5]      The Athwal decision of the Federal Court of Appeal, A-67-97, was rendered on September 11, 1997. Mr. Justice Robertson for himself and Denault and Linden, JJ.A. rendered this answer:

Under s. 70(5)(c) [of the Immigration Act], a finding that a person has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed can be made by the Immigration Appeal Division in the course of determining whether it has jurisdiction to proceed with an appeal.

[6]      Since the IAD can make such a finding, and since the applicant filed an appeal pursuant to section 70 of the Immigration Act with that tribunal, such finding may by now already be made. This judge has not been informed by either side's counsel of any finding by the IAD in this applicant's case. Such a finding will be conclusive of this aspect of this case.

[7]      The events will probably have unfolded as they should. If the IAD has made the finding on which the issue is predicated, and determined that it is without jurisdiction then this Court's interim order (the injunction) made on March 27, 1997, will have dissolved. If the IAD determined that despite the provisions of the Act's subsection 70(5) inter alia, it has jurisdiction, then the parties will know how to proceed.

[8]      In any event the Court of Appeal has made its decision in the Athwal decision and unless picked up and renewed by another judge, the injunction of March 27, 1997 is now dissolved, and this judge is functus officio in this case. It would appear that no order is needed to reify this conclusion; but counsel for either party may by agreement, or by individual application, move the Court to pronounce an order in a proposed form seen by both in order to permit commentary, if desired.

    

Judge

Ottawa, Ontario

December 17, 1997