IMM-2496-96
BETWEEN:
GEORGE
SEIVEWRIGHT
Applicant
-
AND -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS
FOR ORDER
McKEOWN J.
The
applicant seeks judicial review of the decision dated June 25, 1996 and signed
on July 8, 1996 of the Appeal Division of the Immigration and Refugee Board
(the Board) wherein the Board allowed the Minister's motion to dismiss the
appeal for lack of jurisdiction pursuant to paragraph 70(5)(c) of the Immigration
Act (the Act).
The
issues are whether the Board erred in dismissing the appeal for lack of
jurisdiction pursuant to paragraph 70(5)(c) of the Act and whether the
Minister's opinion that the applicant is a "danger to the public" is
reviewable when it is the Board's lack of jurisdiction that is the subject of
review.
On
March 29, 1996, the applicant commenced a leave application challenging the
Minister's subsection 70(5) decision. This leave application was dismissed by
McGillis J. on August 16, 1996 as the applicant did not file an application
record. On June 25, 1996, the Board dismissed the applicant's appeal from his
deportation order on the basis that the Board did not have jurisdiction over
the applicant's appeal pursuant to paragraph 70(5)(c) of the Act. On July 23,
1996, the applicant commenced the leave application challenging the Board's
decision. This is the decision sought to be reviewed in the present
application. The applicant brought an application staying the execution of a
deportation order dated August 20, 1996. The application was dismissed by
MacKay J. on August 23, 1996.
The
present application challenges the decision of the Board that it did not have
jurisdiction to hear the applicant's appeal. Pursuant to subsection 70(5), the
Board was doing what it was statutorily mandated to do. The Board's only
jurisdiction is that granted by Parliament through statute.
The
removal of a statutory appeal does not engage the applicant's Charter
rights under section 7 or his equality rights under section 15. The Supreme
Court of Canada has stated in a number of decisions there is no constitutional
obligation on Parliament to provide a right of appeal. In Minister of
Citizenship and Immigration v. Williams, April 11, 1997, Court File A-855-96
(C.A.) the legislative scheme under subsection 70(5) was found to be
constitutional.
Although
a finding on this issue is sufficient to dispose of this appeal, I will deal
briefly with the issue of whether I should consider whether the Minister erred
in making her decision that the applicant was a danger to the public. In my
view the Minister's decision cannot be challenged in this application for
judicial review. After issuance of the danger opinion on March 8, 1996, the
applicant had the statutory right to commence a leave application to this Court
challenging the deportation order. He did not avail himself of this right. It
was also open to the applicant to seek judicial review of the Minister's
opinion under subsection 70(5). The applicant in not filing an application
record did not avail himself of that right and, therefore, the application was
dismissed. Furthermore, in my view, the Minister had evidence before her of
the applicant's mental condition and exercised her discretion in light of all
the evidence before her. This finding was open to the Minister.
The
application for judicial review is dismissed.
_______________________________
Judge
OTTAWA (ONTARIO)
July 28, 1997
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