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Date: 20030708

 

Docket: IMM-3873-02

 

Citation: 2003 FC 847

 

 

BETWEEN:

 

 

LUIS MIGUEL AMADO-CORDEIRO

                                                                                            Applicant

 

- and -

 

 

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

Respondent

 

 

 

                    REASONS FOR ORDER AND ORDER

 

 

CAMPBELL J.

 

 

[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 July 30, 2002, wherein, for lack of jurisdiction, the IAD discontinued the Applicant’s appeal from a removal order.

 


[2]   The Applicant is a citizen of Portugal.  He came to Canada in 1973 at the age of 2 along with his family, and was granted permanent resident status.  He has lived in Canada continuously ever since.  In 1999, the Applicant was convicted of an offence under s. 5(2) of the Controlled Drugs and Substances Act, and was sentenced to a term of imprisonment for 27 months.  As a result of the operation of S. 27(1)(d) of the Immigration Act (now repealed), on February 21, 2002, the Applicant was ordered deported.

 

[3]   The Applicant filed an appeal from his removal order with the Immigration Appeal Division on February 21, 2002, 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.

 

[4]   On June 28, 2002, the Immigration and Refugee Protection Act (the “IRPA”)

came into force, and replaced the Act.  Subsequently, 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 July 30, 2002, the IAD discontinued the Applicant’s appeal.  This decision was communicated to the Applicant on August 2, 2002.

 


[5]               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.

 

[6]               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

 

[7]             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.

 



[8]               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 July 30, 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”       

Judge                     


 

 

FEDERAL COURT

COUR FÉDÉRALE

 

 

Date: 20030708

 

Docket: IMM-3873-02

 

 

 

BETWEEN:

 

LUIS MIGUEL AMADO-CORDEIRO

 

Applicant

 

- and -

 

 

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

Respondent

 

 

 

 

 

 

 

                                                                      


 

 

REASONS FOR ORDER AND ORDER

 

 

                                                                      

 

 


                                                                               FEDERAL COURT

 

                                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

 

DOCKET:                                                                 IMM-3873-02

 

STYLE OF CAUSE:                                                 LUIS MIGUEL AMADO-CORDEIRO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                               

 

 

PLACE OF HEARING:                                           CALGARY, ALBERTA

 

DATE OF HEARING:                                             JULY 8, 2003

 

REASONS FOR ORDER

AND ORDER:                                                         CAMPBELL, J.

 

DATED:                                                                    JULY 8, 2003

 

 

 

APPEARANCES:

 

Mr. Edward R. Washington                                                                              FOR APPLICANT

 

Ms. Tracy King                                                                                                FOR RESPONDENT

 

 

SOLICITORS OF RECORD:

 


Brunnen Law Offices                                                                                        FOR APPLICANT

Calgary, Alberta

 

Morris Rosenberg,                                                                                            FOR RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

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