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Vincenzo Prata (Appellant) v.
Minister of Manpower and Immigration (Respondent)
Trial Division, Gibson J.—Toronto, June 12 and 19, 1972.
Immigration Appeal Board—Bail—Mandamus—Deporta- tion order—Dismissal of appeal from—Refusal of bail— Application for mandamus—Federal Court Act, section
18—Immigration Appeal Board Act, R.S.C. 1970, c. I-3. ss. 18(1), 23(1).
The Immigration Appeal Board dismissed Fs appeal from a deportation order but refused bail pending an appeal to the Federal Court on the ground of lack of jurisdiction. P applied to the Trial Division under section 18 of the Federal Court Act for an order of mandamus.
Held, P was entitled to an order requiring the Immigration Appeal Board to hear his application for bail on its merits.
APPLICATION for mandamus.
J. A. Hoolihan, Q.C. for appellant. E. A. Bowie for respondent.
GIBsoN J.—On April 7, 1972, there was granted an application made on behalf of the appellant for leave to appeal to the Federal Court of Canada against the judgment of the Immigration Appeal Board dated January 14, 1972 dismissing the appellant's appeal from an Order of Deportation made on October 29, 1971.
On that application, after the granting of leave to appeal, counsel for the appellant asked the Federal Court of Appeal whether bail could be sought from that Court at which time the Court informally told counsel that the Federal Court of Appeal had no jurisdiction in granting bail and referred counsel for the appellant to seek bail from the Immigration Appeal Board.
Apparently counsel for the appellant applied for bail to the Immigration Appeal Board by way of motion, which motion was heard on May 17, 1972 and the Board by formal Order dated June 1, 1972 and signed June 5, 1972 dismissed the motion in these words:
This Board doth order that the said motion be and the same is hereby dismissed by reason that the Board lacks jurisdiction to adjudicate the matter.
The applicant then launched this application before the Trial Division of the Federal Court of Canada under section 18' of the Federal Court Act requesting an order of mandamus directed to the Immigration Appeal Board requiring it to hear his application for bail on its merits on the grounds that the Immigration Appeal Board alone has jurisdiction to entertain an application for bail, notwithstanding the fact that the said appeal is pending before the Feder al Court of Appeal.
Section 18(1) and section 23(1) of the Immi gration Appeal Board Act R.S.C. 1970, c. 1-3, read as follows:
18. (1) A person who is being detained pending the hear ing and disposition of an appeal under this Act may apply to the Board for his release and the Board may, notwithstand ing anything in the Immigration Act, order his release.
23. (1) An appeal lies to the Federal Court of Appeal on any question of law, including a question of jurisdiction, from a decision of the Board on an appeal under this Act if leave to appeal is granted by that Court within fifteen days after the decision appealed from is pronounced or within such extended time as a judge of that Court may, for special reasons, allow.
Order to go requiring the Immigration Appeal Board to hear the applicant's application for bail on its merits. No costs.
I 18. The Trial Division has exclusive original jurisdiction (a) to issue an injunction, writ of certiorari, writ of prohi bition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, com mission or other tribunal; and
(b) to hear and determine any application or other pro ceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
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