Citation: 2003 FCT 661
Toronto, Ontario, May 27, 2003
Present: The Honourable Mr. Justice Campbell
BETWEEN:
KENNETH EUDENZIE JONES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the decision of the Immigration
Appeal Division of the Immigration and Refugee Board (the "IAD"), dated August 7, 2002, wherein, for lack of jurisdiction, the IAD discontinued the Applicant's appeal from a removal order.
[2] The Applicant is a citizen of Jamaica. After arriving in Canada, he was convicted
of sexual assault and incest in 1996, and sentenced to seven years "concurrent". As a result of his conviction, the Applicant was ordered deported. The Applicant filed an appeal from his removal order with the Immigration Appeal Division on November 15, 1998, pursuant to the Immigration Act, R.S.C. 1985, c.-20. ( the " Act"). By s.49(1) of the Act, by the filing of the appeal, a statutory stay came into effect.
[3] On June 28, 2002, the Immigration and Refugee Protection Act (the "IRPA")
came into force, and replaced the Act. By letter dated July 22, 2002, counsel for the Minister of Citizenship and Immigration sent a "Notice of Discontinuance" to the Registrar of the IAD requesting that the Applicant's appeal be discontinued pursuant to s.196 of the IRPA. As a result, by order dated August 7, 2002, the IAD discontinued the Applicant's appeal. This decision was communicated to the Applicant on August 14, 2002.
[4] The Applicant now seeks judicial review of the IAD's decision on the grounds
that he had received a statutory stay of deportation when he submitted his appeal, and as a result, should not be removed from the country.
[5] It is agreed that the legal issue in the present case is as follows:
Did the IAD err in law in concluding that s.196 of the IRPA had the effect of extinguishing the Applicant's appeal rights under s.192 of the IRPA?
[6] Most recently, Justice Snider in Olga Medovarski v. Canada (Minister of
Citizenship and Immigration) (IMM-4060-02, decided May 20, 2003; Neutral Citation: 2003 FCT 634) has addressed this issue and, following a detailed analysis, concluded at paragraphs 48-49 as follows:
Accordingly, I conclude that the word "stay" in section 196 of the IRPA contemplates a stay that came into effect as a result of the operation of paragraph 49(1)(b) of the former Act. My decision in this case does not establish whether Parliament could, through legislative amendments, remove the right of appeal from the Applicant and others in her position; it only determines that Parliament did not do so for this Applicant.
As a result, the IAD erred in concluding that section 196 had the effect of extinguishing the Applicant's appeal rights under section 192 of the IRPA.
[7] I agree with Justice Snider's analysis and, for the same reasons as she provided,
find that the IAD erred in concluding that s.196 of the IRPA had the effect of extinguishing the Applicant's appeal rights under s.192 of the IRPA.
O R D E R
Accordingly, I set aside the IAD's decision of August 7, 2002 and refer this
matter back to a differently constituted panel for redetermination.
As did Justice Snider in Medovarski, I certify the following question of general
importance for determination by the Appeal Division:
Does the word "stay" in s.196 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 contemplate a stay that came into effect under the Immigration Act, R.S.C. 1985, c. I-2 as a result of the operation of s.49(1)(b)?
"Douglas R. Campbell"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4088-02
STYLE OF CAUSE: KENNETH EUDENZIE JONES
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MAY 26, 2003
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: MAY 27, 2003
APPEARANCES: Mr. Hart A. Kaminker
For the Applicant
Ms. Marianne Zoric
For the Respondent
SOLICITORS OF RECORD: Kranc & Associates
Barristers and Solicitors
Toronto, Ontario
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030527
Docket: IMM-4088-02
BETWEEN:
KENNETH EUDENZIE JONES
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER