CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Nokhodchari v. Canada (Minister of Citizenship and Immigration)
IMM-4535-02
2003 FCT 803, Blais J.
26/6/03
16 pp.
Judicial review of Immigration Appeal Division (IAD) decision applicant person within Immigration and Refugee Protection Act (IRPA) who had not been granted stay of deportation under Immigration Act, and had therefore lost appeal to IAD by operation of law--Applicant, Iranian citizen, granted Convention refugee status, then found inadmissible under Immigration Act, s. 19(1)(f)(iii)(B) as person who there were reasonable grounds to believe was engaged in terrorism (member of Mujaheddin national liberation army of Iraq), and ordered deported--Issues whether IAD erred in law in concluding IRPA, s. 196 (appeal to IAD shall be discontinued if appellant has not been granted stay under former Act and appeal could not have been made because of IRPA, s. 64 which precludes appeal to IAD by foreign national or permanent resident if found inadmissible on grounds of national security, violating human or international rights) had effect of extinguishing applicant's appeal rights under IRPA, s. 192; whether Charter, s. 7 engaged on facts of case, if so, whether dismissal of applicant's appeal resulted in breach of principles of natural justice--Application dismissed-- Medovarski v. Canada (Minister of Citizenship and Immigration) (2003), 28 Imm. L.R. (3d) 50 (F.C.T.D.) distinguished--IRPA came into effect June 28, 2002; hearing before Adjudicator herein held June 18, 2002; decision rendered June 26, 2002 ordering deportation of applicant-- Appeal filed June 27--No stay granted--Athwal v. Canada (Minister of Citizenship and Immigration), [1998] 1 F.C. 489 (C.A.) standing for proposition that for applicant's right of appeal to be vested, hearing of appeal must have commenced on or before June 28, 2002; such not case herein--Parliament clearly removed right of appeal to IAD by combined operation of IRPA, ss. 64, 192, 196--As to Charter, s. 7, issue not whether deportation engaging Charter, s. 7, but rather whether statutory removal of appeal to IAD engaging s. 7--Here, not avenues still open to applicant as, before any removal, applicant would still have to face pre-removal risk assessment --No violation of principles of fundamental justice; applicant's right of appeal not in any way constitutionally guaranteed--Consistent case law to effect no right of appeal on any matter unless provided for by relevant legislature: Kourtessis v. M.N.R., [1993] 2 S.C.R. 53; Caiano v. Canada (Minister of Citizenship and Immigration) (1996), 35 Imm. L.R. (2d) 25 (F.C.T.D)--Immigration Act, R.S.C., 1985, c. I-2, s. 19(1)(f)(iii)(B) (as am. by S.C. 1992, c. 49, s. 11)-- Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 64, 192, 196--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.