Federal Court Decisions

     IMM-2734-95

BETWEEN:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Applicant

     - and -

     SATPAL SINGH JHATU

     Respondent

     REASONS FOR ORDER AND ORDER

JEROME, A.C.J.:

     This application by the applicant to certify a question pursuant to section 83(1) of the Immigration Act came on for hearing at Ottawa on November 15, 1996 via teleconference.

BACKGROUND

     The respondent was born in India in December of 1967. The respondent was landed as a permanent resident on December 28, 1975. He acquired a juvenile criminal record during his youth. In 1986, as an adult, he was convicted of aggravated assault. On February 27, 1987, Mr. Jhatu was convicted of second degree murder and sentenced to life imprisonment for killing a woman at the request of her husband.

    

     A removal order was issued against the respondent on June 22, 1989 on the basis that the respondent is a person described in paragraph 27(1)(d) of the Immigration Act, in that he is a permanent resident who has been convicted of an offense under an Act of Parliament for which a term of imprisonment of more than six months has been imposed.

     The Immigration Appeal Division of the Immigration and Refugee Board, by decision dated September 20, 1995, stayed the execution of the removal order made against the respondent for a period of six years. The applicant sought to have this Court set aside the decision of the Appeal Division. In my reasons dated August 2, 1996, I dismissed the application for an order setting aside the decision of the Appeal Division.

    

ANALYSIS

     Decisions of the Federal Court - Trial Division in immigration matters may be appealed to the Federal Court of Appeal if at the time of judgment a question for appeal has been certified by the Trial Division. The applicant would like to have the following question certified:

In considering "all the circumstances of the case", does the Immigration Appeal Division of the Immigration and Refugee Board exceed its jurisdiction when it determines victim impact evidence is inadmissible on the basis that such evidence will have no probative value, without first hearing and weighing that evidence?

Subsection 83(1) of the Immigration Act governs the certification of questions for appeal:

83(1)      A judgment of the Federal Court - Trial Division on an application for judicial review with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be appealed to the Federal Court of Appeal only if the Federal Court -Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.

Thus, only "serious questions of general importance" can be certified. Similar language was interpreted by Mr. Justice Catzman of the Ontario High Court of Justice in Rankin v. McLeod, Young, Weir Ltd. et al. (1986), 57 O.R. (2d) 569. Catzman J. found that Rule 62.02(5)(b) of the Ontario Rules of Civil Procedure "contemplates issues of broad significance or general application that are felt to warrant resolution by a higher level of judicial authority" (supra at 575). The Federal Court of Appeal has relied on that reasoning and has added that the issue to be certified must also be determinative of the appeal (Canada (Minister of Citizenship and Immigration) v. Liyanagamage (1994), 176 N.R. 4).

     In my reasons, I stated that the decision of the Appeal Division not to hear victim impact evidence from five of the children of the murder victim on the basis that the testimony was inadmissible as it would have no probative value was within its jurisdiction and was not so unreasonable as to warrant the Court's intervention. However, the test for certification of questions in Immigration matters does not involve an assessment as to whether I consider my decision on the judicial review application to have been the correct one. Rather, I must consider whether "serious questions of general importance" exist. I am satisfied that this matter raises a serious question of general importance which transcends the interests of the immediate parties to the litigation and that it is appropriate to certify the question proposed by the applicant for consideration by the Federal Court of Appeal.

     I THEREFORE ORDER that the following question be certified:

In considering "all the circumstances of the case", does the Immigration Appeal Division of the Immigration and Refugee Board exceed its jurisdiction when it determines victim impact evidence is inadmissible on the basis that such evidence will have no probative value, without first hearing and weighing that evidence?

The applicant is to have until January 15, 1997 to file the appropriate application.

O T T A W A

December 18, 1996                      "James A. Jerome"

                             A.C.J.