Federal Court Decisions

     IMM-2835-96

BETWEEN:

     DUNG LÊ Ð{NG,

     Applicant,

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

     Respondent.

     REASONS FOR ORDER

DUBÉ J:

     This application is for the judicial review of a decision of the Registrar of the Appeal Division of the Immigration and Refugee Board ("the Registrar") dated July 23, 1996, wherein she advised the applicant that her claim for Convention refugee status before the Refugee Division of the Board ("the Refugee Division") would be scheduled prior to her appeal to the Appeal Division of the Board ("the IAD").

     The concise issue to be resolved in this application is whether the Registrar erred in law by refusing the request of the applicant to be heard by the IAD first, and by the Refugee Division after if still necessary.

     The applicant claims that the Registrar does not have the authority to refuse to schedule an appeal solely on the ground that a refugee claim is pending. She claims that IAD is pursuing a policy of holding a minimum of two hearings as opposed to one, as only one hearing could possibly dispose of all matters. She claims that the IAD rules do not provide such a ground for delaying the disposition of an appeal which is ready to proceed. The IAD is also acting ultra vires and in contravention of section 48 of the Immigration Act ("the Act") which stipulates that "a removal order shall be executed as soon as reasonably practicable". Subsection 49(1) of the Act provides for a statutory stay of a removal so long as an appeal lies before the IAD (or if rejected, before the Federal Court). Thus, by delaying the scheduling of the applicant's appeal, the IAD is wilfully obstructing a public officer (i.e. the Minister) in the execution of his duty to comply with section 48 of the Act.

     The respondent submits, and rightly so in my view, that the IAD is not depriving the applicant of her right of appeal. She will be heard. Every tribunal is endowed with the fundamental power to control its own procedures in order to make sure that justice is done. This power is subject only to limitations arising from the common law or under legislation. The Act directs the Refugee Division to proceed with the hearing of a claim "as soon as practicable" under subsection 69.1(1) of the Act. There is no equivalent section regarding appeals to the IAD. Thus, there is no requirement in law for the IAD to proceed with a hearing of the applicant's appeal prior to her refugee hearing.

     The applicant is not being denied any legal rights or the benefit of any procedure available to her. The order in which the various hearings proceed does not affect any of the applicant's substantive rights. The practical effect of scheduling hearings in accordance with the applicant's preference would not inevitably result in the scenario described by her. Being heard by the IAD first will not necessarily render moot a hearing before the Refugee Board. The alleged saving of time, hearings and money is purely speculative. In fact, the respondent suggests that the instant judicial review will probably result in more costs than an appearance before the Refugee Board.

     There is nothing in the Act to prevent the IAD from scheduling its hearings as it sees fit, provided that hearings are held within a reasonable period of time. On the other hand, the Refugee Board must proceed "as soon as is practicable". Neither parties have invoked the jurisprudence in the matter since there is none, this being a matter of first impression.

     Consequently, it cannot be said that the IAD acted without jurisdiction or erred in law under section 18.1 of the Federal Court Act. The application for judicial review is dismissed.

O T T A W A

June 6, 1997

     Judge