Hall v. Canada ( Minister of Citizenship and Immigration )
IMM-1726-97
Lutfy J.
6/8/98
8 pp.
Application for judicial review of Appeal Division's decision lacked jurisdiction under Immigration Act, s. 70(1) to hear appeal from adjudicator's deportation order-Application to review adjudicator's deportation order on ground he remained visitor in Canada beyond authorized date dismissed in February 1996-Applicant also filed appeal from adjudicator's decision before Appeal Division pursuant to Act, s. 70(1)-Proceeding kept in abeyance pending outcome of application for judicial review-Subsequently, Appeal Division dismissed appeal for lack of jurisdiction-Application allowed-Respondent's motion for dismissal on ground of lack of jurisdiction required Appeal Division to determine whether applicant permanent resident (person who could appeal adjudicator's decision to Appeal Division pursuant to Act, s. 70(1))-Respondent's representative essentially limited submission to noting Federal Court's dismissal of application for judicial review of adjudicator's decision-Wrong in law to suggest outcome in Appeal Division to be dictated by decision in application for judicial review-Act, s. 69.4(2) investing Appeal Division, and not Federal Court, with "sole and exclusive jurisdiction to hear and determine all . . . questions of jurisdiction"-Decision made by Appeal Division appearing to have been based on dismissal by Federal Court of application for judicial review-Even if Appeal Division made own determination as to whether applicant permanent resident, it failed to disclose in writing its own reasons for such determination-Not meeting statutory requirement in Act, s. 69.4(5) and thus error in law-Respondent's motion for lack of jurisdiction referred for redetermination before differently constituted panel of Appeal Division-Adoption of Noël J.'s statement in Canada (Minister of Citizenship and Immigration) v. Seneca, [1998] 3 F.C. 494 (T.D.): "status of person seeking to appeal adjudicator's removal order cannot be invoked to deny appeal right conferred by Act, s. 70(1)(a) where any conclusion drawn with respect to appellant's status necessarily consequence of finding of fact or law made by adjudicator. Suggestion that person concerned has no status because not "lawfully" admitted in first place cannot take away right of appeal on that very question"-Immigration Act, R.S.C., 1985, c. I-2, ss. 69.4 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 63), 70(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13).