Theobalds v. Canada (Minister of Citizenship and Immigration), docket IMM-588-97

Date: 19980129

Docket: IMM-588-97

BETWEEN:

     EUGENE THEOBALDS

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

RICHARD J.:

[1]      The applicant seeks to set aside the decision of the Appeal Division, Immigration and Refugee Board, dated January 8, 1997, and signed on January 24, 1997, which dismissed the applicant's appeal.

[2]      The applicant claims that the decision of the Board was made without jurisdiction because its interlocutory decision on jurisdiction made on June 17, 1996, was wrong in law.

[3]      The applicant does not challenge the determination made by the Board on any other ground.

[4]      The applicant was ordered deported in 1984. He appealed that order to the Board which stayed the execution of the order on October 21, 1987. The order staying execution of the deportation was extended on numerous occasions on terms and conditions specified by the Board.

[5]      The most recent order is dated December 17, 1993, and signed on January 6, 1994. It indicates that the stay of the deportation order is extended for a period of one year and that the Board will review the case on or about December 17, 1994. On October 19, 1994, the Board gave notice that it proposed to review the case.

[6]      On December 13, 1994, the Minister filed an application pursuant to Rule 33 of the Immigration Appeal Division Rules for an order cancelling the stay, dismissing the appeal and directing execution of the deportation order.

[7]      The applicant and his counsel did not receive notice of the Rule 33 application until after December 17, 1994.

[8]      After determining that it had jurisdiction the Board, for the purpose of clarity only, continued the stay of the deportation order pending a determination of the Minister's Rule 33 application, and, in a subsequent hearing, granted the Minister's application, made an order that the direction staying the execution of the deportation order be cancelled, that the appeal be dismissed and that the deportation order be executed as soon as reasonably practicable.

[9]      The applicant has not challenged the validity of the deportation order made on September 13, 1994. He appealed to the Board from that order pursuant to paragraph 70(1)(b) of the Immigration Act on the ground that, having regard to all the circumstances of the case, he should not be removed from Canada.

[10]      The Minister's Rule 33 application was based on the applicant's failure to report as required, as well as on evidence of his criminal record.

[11]      Counsel for the applicant submits that the Board had no jurisdiction to consider the Rule 33 application because the stay had expired and the applicant was a permanent resident entitled to enter and remain unconditionally in Canada. The Board was functus because the sole matter for it to decide, the disposition of the deportation order, had already been decided by the expiry of the period during which the terms and conditions attached to his stay had to be satisfied. Counsel relies on paragraph 24(1)(b) of the Act.

[12]      This argument is not supported by the applicable provisions of the Immigration Act.

[13]      Subsection 73(1) of the Act provides that the Board may dispose of an appeal made pursuant to section 70:

[14]      Clearly, only the action of allowing or of dismissing an appeal is a final disposition of the appeal. The action of granting a stay is a temporary measure. This is made even clearer by the following provisions of section 74 of the Act.

[15]      Subsection 74(2) of the Act states that where the Board grants a stay of a removal order, the person concerned shall be allowed to come into or remain in Canada under such terms and conditions as the Board may determine and the Board shall review the case from time to time as it considers necessary or advisable.

[16]      Subsection 74(3) of the Act states that where the Board has stayed the execution of a removal order it may, at any time

[17]      It is for the Board to decide whether to allow or dismiss the appeal. The appellant, in such a case, cannot acquire an unconditional right to remain in Canada absent an order of the Board.

[18]      Accordingly, the applicant's application for judicial review is dismissed.

     __________________________

     Judge

Ottawa, Ontario

January 29, 1998