[1] We are all of the view that the appeal must be dismissed. This is an appeal of a judicial review of an evidentiary ruling made by an adjudicator in the course of a hearing. The issue was whether the Minister would have to lead evidence to establish one element of the allegations against the respondent, namely whether there were reasonable grounds to believe that the respondent had committed a crime against humanity or a war crime, which I will refer to as international crimes. The Minister asked for a ruling that the issue had been decided by the decision of the Convention Refugee Determination Division which excluded the respondent from claiming the status of refugee because there were serious reasons to consider that he had committed an international crime. The Minister argued that the decision of the Trial Division of the Federal Court in Figueroa v.Canada [2000] F.C.J. No. 250 to that effect was binding upon the Adjudicator.

[2] The Adjudicator did not agree and put the Minister to the proof of all elements of the allegations against the respondent. This did not finally dispose of the question as to whether the respondent had or had not committed an international crime. The Adjudicator simply rejected the Minister's submission to the effect that the fact was already proven by the decision of the CRDD. It did not preclude the Minister from leading evidence to establish that fact. It did not even prevent the Minister from standing on his position and declining to lead evidence on that issue, with a view to ultimately arguing before a judge of the Trial Division that the Adjudicator was wrong and that no proof of that fact was required. Without endorsing the Adjudicator's opinion as to the effect of the court's decision in Figueroa, we agree that it was a decision he was entitled to make at that time.

[3] This is clearly an interlocutory ruling on an evidentiary matter and comes within the decisions of this court in Bell Canada v. C.T.E.A. 2001 FCA 139 and Zundel v. Canada [2000] F.C. 455. Notwithstanding the submissions of counsel, we are unable to see how a decision by an adjudicator on a point of law dealing with evidence to be called can become a jurisdictional question when that adjudicator is, by the terms of s. 80.1 of the Immigration Act RSC 1985 c. I-2, vested with the sole and exclusive jurisdiction "to hear and determine all questions of law and fact, including questions of jurisdiction, that may arise in the course of proceedings."

[4] Furthermore, we see nothing in the record which would support a finding of reasonable apprehension of bias. The Adjudicator's comments are consistent with his concern that the respondent get the benefit of an independent adjudication of his case.

[5] As the application for judicial review was premature, it is unnecessary for us to answer the question certified by the applications judge.

[6] For those reasons we would dismiss the appeal and send the matter back to the Adjudicator for determination on its merits.

[7] The respondent shall have his costs throughout.

"J. D. Denis Pelletier"

J.A.

FEDERAL COURT OF CANADA

APPEAL DIVISION

Names of Counsel and Solicitors of Record

DOCKET: A-141-02

STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Appellant

- and -

JAMIE CARRASCO VARELA

Respondent

DATE OF HEARING: MONDAY, JANUARY 27, 2003

PLACE OF HEARING: TORONTO, ONTARIO

REASONS FOR JUDGMENT

OF THE COURT BY: PELLETIER J.A.

DATED: TUESDAY, JANUARY 28, 2003

JUDGMENT DELIVERED FROM THE BENCH ON MONDAY, JANUARY 27, 2003.

APPEARANCES BY: Mr. Donald A. MacIntosh

Mr. Jamie Todd

For the Appellant

Mr. Micheal Crane

For the Respondent

SOLICITORS OF RECORD: Morris Rosenberg

Deputy Attorney General of Canada

For the Appellant

Micheal Crane

Barrister & Solicitor

166 Pearl street

Suite 200

Toronto, Ontario

M5H 1L3

For the Respondent

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Canada (Minister of Citizenship and Immigration) v. Varela, 2003 FCA 42

Citations2003 FCA 42

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2003 FCA 42