Athwal v. Canada ( Minister of Citizenship and Immigration )
IMM-1458-96
Dubé J.
23/1/97
9 pp.
Application for judicial review of Immigration and Refugee Board Appeal Division decision dismissing applicant's appeal for lack of jurisdiction on basis Minister had issued opinion finding him danger to public pursuant to Act, s. 70(5)-Issue whether adjudicator must have found person described in Act, 27(1)(d) also person convicted of offence for which term of imprisonment of 10 years or more may be imposed before Act, s. 70(5) will be effective to remove applicant's appeal from Appeal Division-Originally, immigration officer issued s. 27 report alleging applicant permanent resident person described in Act, s. 27(1)(d)(i) convicted of offence for which term of imprisonment of more than six months has been imposed and, under s. 27(1)(d)(ii), person convicted of offence for which term of imprisonment of five years or more may be imposed-On April 12, 1996 (s. 70(5) came into force July 10, 1996), Appeal Division held Minister had filed opinion appellant had been determined by adjudicator to be person described in Act, s. 27(1)(d) who had been convicted of offence for which term of imprisonment of ten years or more may be imposed and dismissed appeal for lack of jurisdiction-Application granted-No ambiguity in Act, s. 70(5): no appeals to Appeal Division from adjudicator's determination person described in s. 27(1)(d) has been convicted of offence for which term of imprisonment of 10 years or more may be imposed-No provisions in Act authorizing Appeal Division to substitute own decision for that of adjudicator-Incumbent on Minister, through case presenting officer, to present at inquiry evidence of conviction of offences in question, but did not do so-Question certified: Under Act, s. 70(5), must adjudicator specifically find person described in Act, s. 27(1)(d) also person convicted of offence under Act of Parliament for which term of imprisonment of ten years or more may be imposed, before Act, s. 70(5) will be effective to remove applicant's appeal to Immigration Appeal Division, or can finding be made by Immigration Appeal Division in course of determining whether has jurisdiction to proceed with appeal-Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d) (as am. by S.C. 1995, c. 15, s. 5), 70(5) (as enacted idem, s. 13).