Date: 20000308
Docket: IMM-6036-98
BETWEEN:
DIOGENES FERRER CARBONELL
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] This is an application for leave and judicial review of a decision dated October 23, 1998, in which the Immigration and Refugee Board, Appeal Division, dismissed the Applicant"s appeal from a Deportation Order made against him on June 24, 1998 for lack of jurisdiction.
FACTS
[2] The Applicant is a citizen of Cuba. The Applicant was found to be a Convention refugee pursuant to s.2(1) of the Immigration Act R.S.C. 1985, c. I-2 hereinafter (the "Act").
[3] On January 25, 1993, the Applicant was convicted of one count of possession of a narcotic for the purposes of trafficking under section 4(2) of the Narcotic Control Act R.S.C. 1985, c. N-1. He was sentenced to 15 months incarceration to be followed by two years probation.
[4] On May 6, 1998, an immigration officer, Paul Ennis, made a report to the Deputy Minister of Citizenship and Immigration under section 27(2)(a) of the Act. This report stated that the Applicant was a member of an inadmissible class. More specifically, the Applicant was determined to fall under section 19(1)(c) of the Act.
[5] As a result of this report, an inquiry was held and the Applicant was found to be a person described in section 27(2)(a) and 19(1)(c). Accordingly, a deportation order was issued on June 22, 1998.
[6] The Applicant filed a notice of Appeal pursuant to section 70 of the Act on June 22, 1998. The Appeal Division decided that he had not shown that he fell under s.70 of the Act. Thus, the appeal was not granted. The Applicant was given until September 1, 1998 to make written submissions. The Applicant wrote a letter dated August 24, 1998. In his letter, he described the situation in Cuba and his anti-Communist position, he explained that his family were supporters of the Communist party and that he had been declared a Convention refugee. On October 27, 1998, the Appeal Division dismissed the appeal for lack of jurisdiction.
[7] The Applicant submits that the Appeal Division erred in deciding that it lacked jurisdiction to hear the applicant"s appeal. The Respondent submits that the Applicant"s letter discloses no humanitarian or compassionate grounds on which the Appeal Division could have stayed a deportation order. Hence, the Respondent maintains that the Appeal Division properly decided that it did not have jurisdiction.
[8] The relevant portions of section 70 of the Act, R.S.C. 1985, c-I-2, provide as follows:
| 70.(2) Subject to subsections (3) to (5), an appeal lies to the Appeal Division from a removal order or conditional removal order made against a person who
(a) has been determined under this Act or the regulations to be a Convention refugee but is not a permanent resident; or
(3) An appeal to the Appeal Division under subsection (2) may be based on either or both of the following grounds:
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to the existence of compassionate or humanitarian considerations, the person should not be removed from Canada.
(5) No appeal may be made to the Appeal Division by a person described in subsection (1) or paragraph (2)(a) or (b) against whom a deportation order or conditional deportation order is made where the Minister is of the opinion that the person constitutes a danger to the public in Canada and the person has been determined by an adjudicator to be ...
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| 70.(2) Sous réserve des paragraphes (3) à (5), peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel:
a) les non-résidents permanents qui se sont vu reconnaître le statut de réfugié au sens de la Convention aux termes de la présente loi ou de ses règlements;
(3) Les moyens que peuvent invoquer les appelants visés au paragraphe (2) sont les suivants :
a) question de droit, de fait ou mixte;
b) le fait que, pour des raisons d'ordre humanitaire, ils ne devraient pas être renvoyés du Canada.
(5) Ne peuvent faire appel devant la section d'appel les personnes, visées au paragraphe (1) ou aux alinéas (2)a) ou b), qui, selon la décision d'un arbitre :
...
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[9] The Applicant is a Convention refugee who has not been granted permanent residence. Section 70(2) provides a mechanism for Convention refugees and persons holding visas to appeal a removal order made against them by the Appeal Division. However, this section is subject to subsections (3) and (5).
[10] Subsection (3) stipulates that an appeal to the Appeal Division may be based on a ground of appeal involving a question of fact or law or mixed fact and law and subsection (3) provides a ground stemming from the existence of humanitarian and compassionate grounds. Subsection (5) refers to a situation where the Minister is of the opinion that the person constitutes a danger to the public. Subsection (5) is not applicable as the Applicant has not been found to constitute a danger to the public.
[11] Accordingly, in the present case, the Appeal Division had the jurisdiction under section 70(2)(a) to determine if an appeal should be granted from the removal order made against the Applicant. Subsections (3) (a) and (b) indicate the grounds on which the Appeal Division could have granted this appeal.
[12] The Appeal Division had the obligation of looking at the letter submitted by the Applicant to determine whether it revealed any grounds for appeal. The decision of the Appeal Division should have reflected their reasoning as to why grounds for appeal did, or did not, exist. Accordingly, in my opinion, the Appeal Division erred when it concluded that it lacked jurisdiction without contemplating the question of grounds.
[13] This application for judicial review is granted. The order should be referred back to a differently constituted panel in accordance with these reasons.
"Elizabeth Heneghan"
J.F.C.C.
Toronto, Ontario
March 8, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: DIOGENES FERRER CARBONELL |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
| DATE OF HEARING: FRIDAY, DECEMBER 17, 1999 |
| PLACE OF HEARING: ST-JOHN"S, NEWFOUNDLAND |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: WEDNESDAY, MARCH 8, 2000
APPEARANCES: Mr. Nicholas Summers (709)753-7860
For the Applicant
Ms. Lori Rasmussen
For the Respondent
| SOLICITORS OF RECORD: Legal Aid Commission |
Cormack Building
St-John"s, Newfoundland
A1C 5J9
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
Date: 20000308
Docket: IMM-1002-00
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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