Date: 19990622
Docket: A-414-95
CORAM: LÉTOURNEAU J.A.
BETWEEN:
GAYATHIRI MANIMARAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
HEARD at Toronto, Ontario, Tuesday the 22nd day of May, 1999
JUDGMENT delivered at Toronto, Ontario, Tuesday the 22nd day of May, 1999
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 19990622
Docket: A-414-95
CORAM: LÉTOURNEAU J.A.
BETWEEN:
GAYATHIRI MANIMARAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the bench at Toronto, Ontario
on Tuesday the 22ndday of June, 1999)
LÉTOURNEAU J.A.
[1] This appeal is from an order of a Motions Judge dismissing an application for judicial review of a decision of the Refugee Board that there was no credible basis for the refugee claim of the appellant. While so doing, the learned judge certified the following question pursuant to subsection 83(1) of the Immigration Act (Act)1:
| |
When a board determines that Section 69.1(9.1) of the Immigration Act may apply, is it required to give notice to the Claimant? |
|
[2] In view of the decision of this Court in Mathiyabaranam2, the question must be answered in the negative.
[3] As for the appellant"s demand that this Court reverses the judge"s findings with respect to the merits of his refugee claim, we disagree with his views that the decision of the Supreme Court of Canada in Pushpanathan3 stands for the proposal that the entire decision below is open for consideration on appeal every time a question has been certified under subsection 83(1) of the Act.
[4] It is clear to us that, in the Pushpanathan case, the issue of the standard of review was raised in the certified question itself4 and that such issue was, in the words of Bastarache J., an element necessary for the disposition of the application for judicial review. We do not read the decision of Bastarache J. and the passage quoted by the appellant5 as allowing a full review of the case on its merits including the credibility findings made by the Refugee Board.
[5] The purpose of subsection 83(1) is to preserve judicial resources and achieve efficiency and finality in processing refugee claims by limiting further access to this Court to those instances which involve serious questions of general importance. While an appeal under subsection 83(1) is from the decision of a judge of the Trial Division, it bears, however, on the certified questions and issues that are ancillary to these questions.
[6] Bearing in mind the objectives of subsection 83(1) of the Act and the decision of the Supreme Court of Canada in the Pushpanathan case, we are of the view that this Court is entitled to consider any element of the decision below which is reasonably linked to the certified question and necessary for the proper determination of that question and any element which, as a result of the determination of the said question, is necessary for the disposition of the appeal. None of the issues raised by the appellant in this appeal meets this test.
[7] For these reasons, despite the able argument of Mr. Battista, the certified question will be answered in the negative, the appeal will be granted in part, and paragraph 2 of the Order of the Motions Judge setting aside the decision of the Refugee Board on the ground that the Board was required pursuant to s. 69.1(9.1) of the Act to give notice to a refugee claimant before making a determination of "no credible basis" will be set aside.
"Gilles Létourneau"
J.F.C.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-414-95
| STYLE OF CAUSE: GAYATHIRI MANIMARAN |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
DATE OF HEARING: TUESDAY, JUNE 22, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: LÉTOURNEAU J.A. |
Delivered at Toronto, Ontario
on Tuesday the 22ndday of June 1999
| APPEARANCES: Mr. Michael F. Battista |
For the Respondent
| SOLICITORS OF RECORD: Wiseman, Battista |
| 1033 Bay Street, Suite 205 |
Morris Rosenberg
| Deputy Attorney General of Canada |
For the Respondent
FEDERAL COURT OF APPEAL
Date: 19990622
Docket: A-414-95
BETWEEN:
GAYATHIRI MANIMARAN
Appellant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT
OF THE COURT
__________________
1 Subsection 83(1) reads: 83. (1) A judgment of the Federal Court - Trial Division on an application for judicial review . . . may be appealed to the Federal Court of Appeal only if the Federal Court - Trial Division has at the time of rendering judgment certified that a serious question of general importance is involved and has stated that question.
2 M.E.I. v. Mathiyabaranam (1997), 221 N.R. 351.
3 Pushpanathan v. Canada (Minister of Citizenship and Immigration) [1998] 1 S.C.R. 982.
4 Id. At p. 1001: "It is an error of law for the Refugee Division [of the Immigration and Refugee Board] to interpret section F(c) of Article I of the United Nations Convention relating to the Status of Refugees to exclude from refugee status an individual guilty of a serious Narcotic Control Act offence committed in Canada?" [emphasis added].
5 Id. At p. 1003 : The certification of a "question of general importance" is the trigger by which an appeal is justified. The object of the appeal is still the judgment itself, not merely the certified question. One of the elements necessary for the disposition of an application for judicial review is the standard of review of the decision of the administrative tribunal whose decision is being reviewed, and that question is clearly in issue in this case.
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