[2016] 3 F.C.R. D-2
Citizenship and Immigration
Exclusion and Removal
Removal of Permanent Residents
Judicial review of Immigration Appeal Division (IAD) decision holding that IAD lacking jurisdiction to hear appeal of removal order issued against applicant since applicant inadmissible on grounds of serious criminality — Applicant, permanent resident, citizen of Republic of Ireland — Convicted of several offences under Criminal Code, R.S.C., 1985, c. C-46; sentenced to one-year conditional sentence — Issued deportation order on grounds of serious criminality since sentenced to term of imprisonment greater than six months — Applicant appealing removal order before IAD; arguing that IAD could hear appeal since conditional sentence not term of imprisonment within meaning of Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 64(2) — Act, s. 64(2) providing no appeal can be made to IAD by permanent resident if permanent resident found inadmissible on grounds of serious criminality — IAD holding not having jurisdiction to hear appeal pursuant to Act, s. 64 since conditional sentence constituting “term of imprisonment” under s. 64(2) — Whether IAD erring in finding that conditional sentence constituting term of imprisonment for purposes of Act, s. 64(2) — Purpose of s. 64(2) to remove criminals sentenced to terms of imprisonment of at least six months from country — Federal Court of Appeal decision in Canada (Public Safety and Emergency Preparedness) v. Tran (2015 FCA 237) relevant herein — While Tran dealing with interpretation of “term of imprisonment” in Act, s. 36(1)(a), decision still relevant herein since s. 64(2) using very same words; both provisions using similar language; s. 64(2) allegedly amended to put it in line with s. 36(1)(a) — Thus, Federal Court of Appeal’s analysis in Tran regarding interpretation of words “term of imprisonment” in Act, s. 36(1)(a) applying to s. 64(2) thereof — Tran also addressing legislation in s. 64(2), providing analysis on s. 64(2) subject matter which applying directly to present case — Furthermore, legislative history discussed in Tran instructive of reasons for adoption of Act’s provisions relevant to case herein since applying directly to conditional sentences — In decision, IAD examining conflicting lines of case law, following line of case law commending itself most to present case — IAD holding that one-year conditional sentence constituting term of imprisonment of at least six months; that pursuant to Act, s. 64(2), not having jurisdiction to hear appeal of removal order — Given Federal Court of Appeal’s recent decision in Tran, IAD’s decision therefore reasonable — Application dismissed.
Shehzad v. Canada (Citizenship and Immigration) (IMM-3692-15, 2016 FC 80, Shore J., judgment dated January 22, 2016, 12 pp.)