Date: 20090317
Docket: IMM-2648-08
Ottawa, Ontario,
March 17, 2009
PRESENT: The Honourable Madam Justice Hansen
BETWEEN: JOEL
DUNCAN COLLINS Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
UPON an application
for judicial review of the May 28, 2008 decision of the Immigration
and Refugee Board
(Immigration Division) (ID);
AND UPON reading the
Certified Tribunal Record and the materials submitted by the parties;
Page: 2
AND UPON hearing
the submissions of counsel for the parties;
AND UPON considering
the following:
In the impugned
decision, the ID Member observed that a review of the Minister's decision to
proceed with an admissibility hearing is a matter for the Federal Court to
determine. He expressed discomfort with proceeding with an admissibility
hearing in light of the circumstances
leading up to the preparation of the report. However, he stated that his
function was not to review the decision of the border officer or the exercise
of Ministerial discretion. He concluded that despite his views he had been
provided with a referral and a report and he was "obliged to proceed with
the hearing."
At the hearing of
the judicial review, the Applicant reformulated the central issue as whether
the ID has the jurisdiction to decline to hold a hearing if it finds that a
report prepared pursuant to section 44 of
the Immigration
and Refugee Protection Act, S.C. 2001, c.27 is invalid.
As the Respondent submits, this formulation is
premised on the ID having the jurisdiction to inquire into the validity
of the section 44 report.
The Applicant was unable to point to, and I have
been unable to find, any legislative, regulatory or jurisprudential
support for the proposition that the ID has the jurisdiction to enter into an
inquiry regarding the validity of a section 44 report. Indeed, the
jurisprudence confirms the very limited jurisdiction of the ID in these
circumstances: Hernandez
v. Canada (Minister of Citizenship and Immigration), 2005 FC 429. Accordingly, I
reject the Applicant's argument that in these circumstances the ID erred in
concluding that it was obliged to hold the hearing.
I also wish to
add that, in my view, in bringing of the application for judicial review of the
ID's decision, the Applicant was attempting to indirectly attack the validity
of the section 44 report. However, a challenge to the validity of this report
should have been brought by way of an application for leave and judicial review
of the report.
AND UPON neither party having submitted a serious question of general importance
for certification;
THIS COURT ORDERS that:
1.
The application for judicial review is dismissed.
2.
No question is certified.
"Dolores M. Hansen"
Judge
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