Canada ( Minister of Citizenship and Immigration ) v. Canada ( Immigration and Refugee Board )
IMM-3415-98
Sharlow J.
8/7/99
14 pp.
Application for judicial review of decision by Appeal Division of Immigration and Refugee Board to hear reopened appeal of deportation order lawfully executed-Applicant, citizen of Guatemala, came to Canada as permanent resident-Convicted of criminal offence, sexual assault of child-Deportation order issued against him under Immigration Act, s. 32(2)-Applicant appealing deportation order to Appeal Division-Appeal denied-Leave to commence application for judicial review of Appeal Division's decision denied-Deportation order executed on September 29, 1997-Appeal Division allowing applicant's motion to reopen appeal of deportation order-Granting stay of execution of deportation order, subject to certain conditions-Minister seeking order quashing decision of Appeal Division staying deportation order, on basis decision outside Appeal Division's jurisdiction-Immigration Act should not be interpreted to give Appeal Division jurisdiction to reopen appeal of deportation order, while clothing Minister with rights to terminate jurisdiction unilaterally by executing deportation order before motion heard-Words of Immigration Act, s. 75 clear-Appeal Division having jurisdiction to order return of any person deported, if appeal pending before Appeal Division-S. 75 having broader potential application that counsel for Minister recognized-Enacted in 1985, 14 years after decision in Grillas v. Minister of Manpower and Immigration, [1972] S.C.R. 577-Parliament, knowing of that decision, must be taken to have intended jurisdiction of Appeal Division would survive execution of deportation order in cases to which s. 75 applies-In case of appeal that occurs after deportation, fact of execution must be ignored-Same true of reopened appeal within jurisdiction of Appeal Division-Decision of Reed J. in Canada (Minister of Citizenship and Immigration) v. Harrison, [1998] 4 F.C. 557 applied-Appeal Division having jurisdiction to hear applicant's reopened appeal-Application dismissed-Certified question: Where Appeal Division of Immigration and Refugee Board heard, dismissed appeal of deportation order, does it have jurisdiction to reopen appeal if deportation order executed after motion to reopen filed but before Appeal Division grants motion-Immigration Act, R.S.C., 1985, c. I-2, ss. 32(2), 75 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18).