Date: 19980525
Docket: IMM-3461-97
Between :
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
NGOC KHANH NGUYEN
Respondent
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review whereby the applicant is seeking an order setting aside the decision of Ed Lam of the Appeal Division of the Immigration and Refugee Board (the "IAD") dated July 28, 1997, whereby it was ordered that the execution of the removal order made against the respondent on March 7, 1995 be stayed.
[2] At the hearing before me, counsel for the applicant indicated that counsel for both parties had agreed that this matter be decided on the record, which includes their written submissions. I have accepted to dispose of the matter accordingly.
[3] The applicant raises a single issue: "Did the IAD exceed its jurisdiction and thereby err in law by hearing the respondent's appeal and by staying the deportation order when the Minister had issued an opinion pursuant to subsection 70(5) of the Immigration Act (the "Act") that the applicant constitutes a danger to the public in Canada?"
[4] In my view, this matter can be disposed of briefly by a reference to the recent Federal Court of Appeal decision in Athwal v. Canada (M.C.I.) (1997), 220 N.R. 355. The Court of Appeal allowed the appeal from the Motions judge's decision, concluding that "it is reasonable to maintain that it was Parliament's intention to vest the IAD with the responsibility of determining whether a person had been convicted of an offence for which a prison term of ten years or more could have been imposed". The Court answers the certified question at page 361:
| "Under s.70(5)(c), 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." |
[5] It is my opinion that in light of this recent development, not only is it possible for the IAD to make such a determination, it was incumbent upon the IAD to make a finding in this regard prior to assuming jurisdiction in this matter.
[6] The application for judicial review is therefore allowed, and the matter shall be returned before the IAD with the sole direction to determine whether the respondent has been convicted of an offence for which a term of imprisonment of ten years or more may be imposed. Given that the other conditions of subsection 70(5) of the Act have been met, should the IAD answer this question in the affirmative, it will then lose the jurisdiction to allow the respondent's appeal as it did.
[7] The matter raises no question of general importance for the purpose of certification.
JUDGE
OTTAWA, ONTARIO
May 25, 1998