Gonsalves v. Canada ( Minister of Citizenship and Immigration )
IMM-1992-96
Muldoon J.
9/5/97
16 pp.
Judicial review of Immigration Appeal Division's dismissal of appeal from deportation order-Applicant permanent resident-In 1993 convicted of manslaughter, sentenced to 52-month term of imprisonment-Deportation order issued in 1994-Appeal hearing scheduled for October 16, 1995-In meantime Immigration Act, s. 70(5)(c) coming into force-Prohibiting appeal against deportation order where Minister of opinion person constituting danger to public in Canada and person determined by adjudicator to be person described in s. 27(1)(d) who has been convicted of offence for which term of imprisonment of ten years or more may be imposed-Minister informing applicant considering issuing danger opinion-Appeal hearing commenced October 23-On October 31 Minister issuing opinion applicant danger to public-In February 1996 Appeal Division requesting submissions regarding application of Tsang v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 214 (F.C.T.D.)-In May 1996 appeal dismissed for want of jurisdiction pursuant to Tsang-Application dismissed-Appeal Division correctly determining lacked jurisdiction to entertain applicant's appeal-Even if hearing commenced prior to issuance of danger opinion, issuance of danger opinion pursuant to s. 70(5) strips Appeal Division of jurisdiction to hear appeal: Tsang-Applicant not having legitimate expectation Appeal Division would dispose of appeal-Relying on presiding member's statement in reasons initially concluding Appeal Division having jurisdiction to dispose of appeal-Decision of Federal Court, Trial Division (Tsang) binding on Immigration and Refugee Board, Appeal Division unless Federal Court of Appeal disturbing decision-Furthermore, no final decision made before decision declining jurisdiction-Doctrine of legitimate expectation creating only procedural, not substantive rights-Procedural requirements satisfied by applicant making submissions-Right to determination substantive-Determination finding Parliament, by enacting s. 70(5), terminating Appeal Division's jurisdiction to deal with applicant's appeal-Telephone call on behalf of registrar to applicant's counsel stating determination would be made in matter insufficient to create estoppel as applicant neither relying on call nor acting on it-Estoppel cannot be invoked to preclude exercise of statutory duty, Minister cannot be deemed to act in contravention of statutory duty-Athwal v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 95 (F.C.T.D.) (QL) indicating possible gap between ss. 70(5)(c), 27(1)(d)-Question before adjudicator at s. 27 inquiry whether person described in any of enumerated paragraphs including s. 27(1)(d) but as before danger opinion contemplated, adjudicator having no jurisdiction under s. 70(5)(c)-Applying established canons of interpretation, object of s. 70(5) to remove convicted person's appeal to Appeal Division if committed offence resulting in sentence in excess of six months and if crime of type that sentence could be more than ten years and Minister determining person danger to public-To do this Parliament relying on inquiry provisions under s. 27-At inquiry adjudicator asking subject of inquiry whether serving sentence in excess of six months-Next step to determine if crime of nature which could attract sentence in excess of ten years-Simple matter of clear statutory law-While comma immediately in front of "who has been convicted of an offence under any Act of Parliament for which a term of imprisonment of ten years or more may be imposed" preferable, clear and reasonable interpretation to say Act, not adjudicator, stating opinion will issue after adjudicator making s. 27 determination-Minister can issue opinion only if person meeting statutory requirements-Interpretation according with s. 70(5)(a), (b) allowing removal of right of appeal if adjudicator finding person to be described in ss. 19(1)(c), (c.1), (d), 27(1)(a.1)-Parliament intending s. 70(5) to apply only to offences so serious as to merit maximum prison term of more than ten years-Participation of adjudicator through to end of s. 70(5)(c) not required-No reason why those subject to s. 70(5)(c) opinion having right to appeal while those in immediately preceding paragraphs do not-Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d), 70(5) (as am. by S.C. 1995, c. 15, s. 13).