Date: 19980123
Docket: IMM-3986-96
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Applicant
- and -
TRAN TRUC NGUYEN
(a.k.a. THANH TRUC NGUYEN)
Respondent
REASONS FOR ORDER
GIBSON, J.
[1] These reasons arise out of a decision of the Immigration Appeal Division (the "IAD") of the Immigration and Refugee Board wherein the IAD quashed a removal order made against the respondent. The removal order was based on a determination that the respondent was a permanent resident who was granted landing by reason of fraudulent misrepresentation of a material fact, whether made by the respondent himself or by another person. However, the IAD, over the objection of the applicant herein, determined that it had jurisdiction under subsection 70(1) of the Immigration Act1 to consider the appeal against the removal order, determined the removal order to be valid in law and nonetheless quashed it on the ground that, having regard to all the circumstances of the case, the respondent should not be removed from Canada. The decision of the IAD that is under review is dated the 4th of October, 1996.
[2] The sole issue addressed before me on this application for judicial review was the appropriate standard for judicial review and whether or not, against that standard, the IAD erred in a reviewable manner in determining that it had jurisdiction to entertain the respondent's appeal.
[3] In Canada (Minister of Citizenship and Immigration) v. Hundal2, Mr. Justice Rothstein wrote at page 312:
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Counsel for the respondent argued that in view of the privative provision respecting the jurisdiction of the Appeal Division, as contained in s. 69.4(2) of the Immigration Act, this court should exercise judicial deference in considering any jurisdictional appeal from a decision of the Appeal Division. Section 69.4(2) provides: |
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69.4(2) the Appeal Division has, in respect of appeals made pursuant to sections 70, 71 and 77, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in relation to the making of a removal order or the refusal to approve an application for landing made by a member of the family class. |
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In view of my decision to uphold the decision of the Appeal Division, it is not necessary for me to deal with the question of judicial deference and the meaning of s. 69.4(2). |
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[4] Counsel for the respondent argued that subsection 69.4(2) amounted to a privative clause, and that, therefore, this Court should defer to the IAD determination on jurisdiction in this case, as it was not patently unreasonable. I conclude that subsection 69.4(2) is not, of its nature, a privative clause in relation to this application in that that it in no way speaks to the jurisdiction of this Court on judicial review of a decision of the Appeal Division regarding its own jurisdiction. On that basis, I find no ground on which to conclude that special deference is owed to the IAD. Determination of jurisdiction in the context here at issue is essentially a matter of statutory interpretation in the context of the facts before the IAD. In such circumstances, I am satisfied that the IAD is in no better position to perform that function than is this Court on judicial review of the IAD's decision in the first instance3.
[5] I turn then to the review of the IAD's decision regarding jurisdiction. In Minister of Citizenship and Immigration v. Yu4, Mr. Justice Dubé had before him an application for judicial review of a decision of the IAD with regard to its jurisdiction under section 70 of the Immigration Act on facts very similar to those in this matter. I am in full agreement with the analysis of Mr. Justice Dubé in that matter and adopt it as my own. On the basis of that analysis, I reach the same conclusion as did my learned colleague: the IAD had no jurisdiction to entertain this appeal. As in Yu, the principal reasons for the issuance of the respondent's visa herein ceased to exist before its issuance. The visa on which the respondent relied was void on issuance.
[6] Consequently, this application for judicial review will be allowed.
[7] In Yu, Mr. Justice Dubé certified a three-part question. Both counsel before me agreed that it would be appropriate to certify the first two parts of that question in this matter, the third part not having been argued before me. In the result, the following question will be certified:
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Does the IAD have jurisdiction under subsection 70(1) to entertain the appeal of a person who was landed in reliance of a fraudulent misrepresentation made by that person? In particular, has a person who has been landed on the basis of a fraudulent misrepresentation been given "lawful permission to establish herself within Canada" so as to be a "permanent resident" who can appeal under subsection 70(1) of the Immigration Act? |
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"Frederick E. Gibson"
Judge
Toronto, Ontario
January 23, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-3986-96
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
- and -
TRAN TRUCK NGUYEN
(a.k.a. THANH TRUC NGUYEN)
DATE OF HEARING: JANUARY 20, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT BY: GIBSON, J.
DATED: JANUARY 23, 1998
APPEARANCES:
Mrs. Leena A. Jaakkimainen
For the Applicant
Mr. Lloyd W. MacIlquham
For the Respondent
SOLICITORS OF RECORD:
George Thomson
Deputy Attorney General
of Canada
For the Applicant
55 Town Centre Court
Suite 519
Scarborough, Ontario
M1P 4X4
For the Respondent
FEDERAL COURT OF CANADA
Date: 19980123
Docket: IMM-3986-96
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
TRAN TRUC NGUYEN
(a.k.a. THANH TRUC NGUYEN)
Respondent
REASONS FOR ORDER
__________________
1 R.S.C. 1985, c. I-2
2 (1995), 96 F.T.R. 306; (1996), 36 Imm. L.R. (2d) 153 (F.C.A.)
3 See, for example, Canada (A.G.) v. Public Service Alliance of Canada , [1991] 1 S.C.R. 614; U.E.S. Local 298 v. Bibeault, [1988] 2 S.C.R. 1048
4 June 6, 1997, Court File IMM-1264-96 (unreported) (F.C.T.D.)
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