Date: 19990914
Docket: IMM-5444-98
BETWEEN:
JORGE ALBERTO PORTILLO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
[1] This application raises a novel point concerning the operation of the transitional provisions that apply to subsection 70(5) of the Immigration Act. The relevant facts follow. A conditional removal order was issued against the applicant on August 23, 1993. He filed an appeal to the Immigration Appeal Division ("IAD"). His appeal was dismissed on July 29, 1994. However, he was not removed from Canada. On January 28, 1998, he filed a motion to reopen the 1993-94 appeal. On April 3, 1998, the motion to reopen was granted by the IAD and a hearing was scheduled for July 8, 1998. Before the hearing could take place, however, the Minister issued a danger to the public opinion pursuant to subsection 70(5) of the Immigration Act.
[2] The IAD sought submissions from both the applicant and the Minister as to whether it had jurisdiction to commence a hearing of the reopened appeal.
[3] On September 30, 1998, the IAD decided that it did not have such jurisdiction and dismissed the applicant's appeal. It is that decision that is the subject of the present application.
[4] The IAD's decision to dismiss the applicant's appeal was based on an interpretation of the relevant statutory provisions, and an analysis of whether a reopened appeal is closer to a continuation of the earlier appeal or the commencement of a second appeal. The IAD concluded that the latter characterization was more appropriate.
[5] The transitional provisions are found in subsection 13(4) of S.C. 1995, c. 15:
Subsection 70(5) of the Act, as enacted by subsection (3), applies to an appeal that has been made on or before the coming into force of that subsection and in respect of which the hearing has not been commenced, but a person who has made such an appeal may, within fifteen days after the person has been notified that, in the opinion of the Minister, the person constitutes a danger to the public in Canada, make an application for judicial review under section 82.1 of the Act with respect to the deportation order or
Le paragraphe 70(5) de la même loi, édicté par le paragraphe (3), s'applique aux appels interjetés dans le cadre de l'article 70 dont l'audition n'est pas commencée à la date de son entrée en vigueur; cependant, toute personne visée peut, dans les quinze jours suivant la date à laquelle elle est avisée que, selon le ministre, elle constitue un danger pour le public au Canada, présenter une demande de contrôle judiciaire, dans le cadre de l'article 82.1, à l'égard de la mesure de renvoi ou de renvoi conditionnel.
conditional deportation order referred to in subsection 70(5). [Emphasis added.]
[Sans italiques dans l'original.]
[6] Counsel for the applicant argues that: the plain meaning of the wording of the transitional provisions preserves the IAD's jurisdiction; there is only one appeal and it was commenced on August 23, 1993; statutorily there can be no fresh or new appeal - the limitation provision in the statute do not allow for such. He argues that while the result of the literal wording may be unexpected, it is not absurd and therefore the Court need not go beyond that wording to interpret the provisions.
[7] Counsel for the respondent argues that: the IAD's decision, in equating the reopening of an appeal to a new appeal, is correct; the hearing on reopening is a new hearing before a different panel, on the basis of new evidence; the hearing on the reopening is not a continuation of the first hearing. She argues that, in the light of the clear purpose of subsection 70(5), it makes no sense for the IAD to continue to have jurisdiction in the present circumstances.
[8] I have been persuaded that the IAD decision is correct, and that it does not have jurisdiction in the applicant's case. I base my decision, however, on a slightly different ground from that of the IAD. I accept the argument of counsel for the applicant, that the applicant's appeal was commenced in 1993, and that there is only one appeal. Subsection 13(4), however, sets out two requirements: the appeal must have been launched before July 10, 1995, the date of the coming into force of subsection 70(5), and a hearing must also have been commenced before that date. The effect of reopening the appeal is not the continuation of the 1994 hearing. The reopening allows for the holding of a new hearing. One before a different panel, in which evidence additional to that previously heard will be adduced. It can be described as a hearing de novo. I am persuaded that, in those circumstances when a subsection 70(5) opinion is issued, it operates to remove jurisdiction from the IAD. The hearing that had been scheduled was not one that had been commenced when subsection 70(5) came into force.
[9] Counsel have asked that I not issue an order until they have had an opportunity to consider whether a request will be made for certification. The applicant shall have until September 21, 1999, to make representations in that regard. The respondent shall have until September 27, 1999, to comment thereon.
Judge
OTTAWA, ONTARIO
September 14, 1999