Digests

Esteban v. Canada (Minister of Citizenship and Immigration)

IMM-4491-02

2003 FC 930, Dawson J.

29/7/03

19 pp.

Judicial review of decision of Registrar of Immigration Appeal Division (IAD) discontinuing applicant's pending appeal to IAD as result of application of Immigration and Refugee Protection Act (IRPA), s. 196--Applicant permanent resident of Canada who, since 1990, convicted of five criminal offences in Canada--Sentenced to four-year term of imprisonment in February, 2001--On December 9, 2001, delegate of Minister of Citizenship and Immigration formed opinion, under former Immigration Act, s. 70(5), applicant danger to Canada--Applicant ordered deported--IRPA proclaimed on June 28, 2002--On August 23, 2002, Court allowed applicant's application for judicial review of ministerial danger opinion on consent of respondent-- Hearings officer requesting IAD discontinue applicant's appeal under IRPA, ss. 64, 196--Determinative issue proper interpretation of IRPA, s. 196--Gist of dispute between parties proper interpretation of phrase "granted a stay under the former Act" in s. 196--Minister arguing phrase only refers to stays granted by IAD under former Act, s. 73--Applicant stating phrase includes statutory stay arising automatically by operation of former Act, s. 49(1)(b)--Transition provision found in s. 196 applicable to applicant so as to discontinue pending appeal unless statutory stay entitled to under former Act is stay "granted" under former Act within contemplation of s. 196--If question before Court matter of first impression, would conclude IAD erred in interpretation of s. 196--S. 196 only has meaning if contemplates statutory stay--IRPA, ss. 196, 197 should be read together as both limit general provision in s. 192 continuing appeals under former Act-- Where person entitled to benefit of statutory stay , judicial stay likely not available--Case law interpreting s. 196 on basis of ordinary meaning of words used, on basis of reading s. 196 in entire context, harmoniously, with scheme, object of IRPA, intention of Parliament--Interpretation whereunder s. 196 contemplates statutory stay avoids impossibility of "granted" stays in respect of appeal pending with IAD, but not heard--Registrar erred by concluding applicant's appeal discontinued--Decision set aside--Application allowed-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 64, 196, 197--Immigration Act, R.S.C., 1985, c. I-2, ss. 49(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 16; S.C. 1990, c. 8, s. 52; 1992, c. 49, s. 41; 1999, c. 31, s. 133; 2002, c. 8, ss. 182(1)(s), 183(1)(l)), 70(5) (as am. by R.S.C., 1985 (3rd Supp.), c. 30, s. 8; (4th Supp.), c. 28, ss. 18, 35), 73 (as am. idem, s. 18).