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operation of S. 27(1)(d) of the Immigration Act (now repealed), on February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
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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