CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Tesoro v. Canada (Minister of Citizenship and Immigration)
IMM-3593-03
2004 FC 984, Gibson J.
16/7/04
12 pp.
Judicial review of Immigration Appeal Division's (IAD) refusal to reopen appeal from decision appeal from finding applicant inadmissible to Canada on ground of serious criminality discontinued--Applicant permanent resident in Canada since 1967--In August 2001 convicted of numerous counts of forgery, fraud--On December 10, 2001, ordered deported--Appeal filed on same date--Subsequently, but before appeal heard by Board, Immigration and Refugee Protection Act came into force on June 28, 2002--By letter dated July 23, 2002, respondent requested Board to discontinue appeal filed by applicant--Notwithstanding informality of request and in absence of any responding submissions by or on behalf of applicant, applicant's appeal to Board, which might have demonstrated significant humanita-rian and compassionate concerns on behalf of applicant, discontinued--Motion to reopen by new counsel led to decision under review--Board citing Immigration and Refugee Protection Act (Act), s. 71, which specifically refers to applications to reopen appeals--Specifically declining to answer question of whether denial of natural justice occurred--Instead relying on Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, to determine motion against applicant as outcome inevitable, regardless of whether breach of natural justice-- Board holding Parliament clear in intention to impose retroactivity in application of Act, s. 196--In Medovarski v. Canada (Minister of Citizenship and Immigration), [2003] 4 F.C. 227 (T.D.), Snider J. reached opposite conclusion but overturned on appeal ([2004] 4 F.C.R. 48 (C.A.))--Federal Court of Appeal effectively affirmed decision here under review to extent decision concludes reinstatement of applicant's appeal would be fruitless because result of such appeal would inevitably go against applicant--Leave to appeal to Supreme Court of Canada in Medovarski sought--While IAD's failure to address whether breach of natural justice occurred not condoned, in interest of ensuring optimal use of scarce resources of Board and Court, Court not prepared to find reviewable error in that regard--No reviewable error in IAD's reliance on Mobil Oil in light of current state of law following Federal Court of Appeal decision in Medovarski-- Application dismissed--Immigration and Refugee Protection Act, S.C., 2001, c. 27, ss. 71, 196.