Date: 20050620
Docket: IMM-4571-04
Citation: 2005 FC 877
BETWEEN:
RONALD JOHN GOMES
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
[1] This judicial review raises another aspect in Mr. Gomes proceedings to avoid deportation. Justice O'Keefe, in Canada (Minister of Citizenship and Immigration) v. Gomes, [2005] F.C.J. No. 369, 2005 F.C. 299 (February 25, 2005) held that Mr. Gomes' pre-sentence time counted toward the two year rule in subsection 64(2) the IRPA. The result is that the Immigration Division of the Immigration and Refugee Board (IAD) did not have jurisdiction to consider his appeal of a deportation order.
[2] In an August 2, 2003 decision, Member Kalvin held that pre-sentence incarceration did not count against Mr. Gomes' appeal rights. While the judicial review of that decision was proceeding through this Court, the Minister brought a further motion on the file which caused Member D'Ignazio to invite submissions on jurisdiction.
[3] On May 4, 2005 the IAD then decided that the Applicant's sentence of 32 months pre-sentence custody and an additional year of imprisonment amounted to punishment of two years or more. As a result the Applicant had lost his right of appeal by virtue of section 64.
[4] The crux of the Applicant's case now is that while the IAD's 2003 decision (Member Kalvin) in favour of the Applicant was proceeding through the Court, a member of the IAD (Member D'Ignozio) was dealing with the same jurisdictional issue in the same file.
[5] The Applicant says that Member D'Ignazio should have adjourned the hearing and not rendered judgement. Mem D'Ignozio's judgement was effectively the same as Justice O'Keefe's decision nine (9) months later in respect of Member Kalvin's decision.
[6] The Applicant did not seek a stay of Member D'Ignazio's proceedings either directly or even obliquely. The Applicant relied on Member Kalvin's decision and wanted Member D'Ignazio to proceed on the strength of that decision.The Applicant was content to take advantage of that earlier decision which has now been reversed.
[7] I find nothing procedurally unfair or inappropriate about what Member D'Ignazio did particularly in light of the absence of a motion to stay or adjourn his proceeding.
[8] The Respondent triggered the second proceeding; the IAD had to deal with the matter unless The Applicant moved otherwise - he did not. The IAD has broad discretion to control its proceedings and there is no improper exercise of discretion here.
[9] Finally, given Justice O'Keefe's decision, in which no question was certified, the legal issue at the centre of the Applicant's case against deportation may be rendered this matter moot.
[10] Therefore there has been no improper action or reviewable error committed by Member D'Ignazio. This judicial review will be dismissed. There is no question to be certified.
(s) "Michael L. Phelan"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4571-04
STYLE OF CAUSE: RONALD JOHN GOMES v.
MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 2, 2005
REASONS FOR ORDER : Phelan J.
DATED: June 20, 2005
APPEARANCES:
Dhaman P. Kissoon For the Applicant
Mielka Visnic For the Respondent
SOLICITORS OF RECORD:
Dhaman P. Kissoon For the Applicant
Toronto, Ontario
Mr. John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
Email this Content