Canada (Minister of Citizenship and Immigration) v. Varela, (2002) 216 F.T.R. 67 (TD)

• Judge: Gibson, J.
• Court: Federal Court (Canada)
• Case Date: January 10, 2002
• Jurisdiction: Canada (Federal)
• Citations: (2002), 216 F.T.R. 67 (TD)

Can. (M.C.I.) v. Varela (2002), 216 F.T.R. 67 (TD)

MLB headnote and full text

Temp. Cite: [2002] F.T.R. TBEd. MR.003

The Minister of Citizenship and Immigration (applicant) v. Jamie Carrasco Varela (respondent)

(IMM-2807-00; 2002 FCT 167)

Indexed As: Canada (Minister of Citizenship and Immigration) v. Varela

Federal Court of Canada

Trial Division

Gibson, J.

February 14, 2002.

Summary:

The Convention Refugee Determination Division (CRDD) determined that Varela was excluded from refugee protection by art. 1F(a) of the Convention (crimes against humanity). The Federal Court of Appeal denied leave to appeal the CRDD's decision. An adjudicator later commenced an inquiry into whether Varela was inadmissible under s. 19(1)(j) of the Immigration Act (war crimes or crimes against humanity). The Minister requested that the adjudicator find himself bound by the decision in Figueroa v. Canada (Minister of Citizenship and Immigration) wherein Pinard, J., stated that a finding that a refugee was excluded from the protection of the Convention under art. 1F(a) demonstrated that the first part of the test under s. 19(1)(j) of the Act had been fulfilled. The adjudicator dismissed the Minister's application, holding that he was not bound by the earlier decision of the CRDD. The Minister applied for judicial review of the adjudicator's decision.

The Federal Court of Canada, Trial Division, dismissed the application.

Administrative Law - Topic 3202

Judicial review - General - Scope or standard of review - The Convention Refugee Determination Division (CRDD) determined that Varela was excluded from refugee protection by art. 1F(a) of the Convention (crimes against humanity) - The Federal Court of Appeal denied leave to appeal the CRDD's decision - An adjudicator later commenced an inquiry into whether Varela was inadmissible under s. 19(1)(j) of the Immigration Act (war crimes or crimes against humanity) - The Minister applied for judicial review of a decision of the adjudicator that he was not bound by the CRDD's earlier decision - With respect to the applicable standard of review, the Federal Court of Canada, Trial Division, stated that the issue was one of jurisdiction, i.e., the scope of an adjudication under s. 19(1)(j) where the CRDD had previously dealt with an issue that would normally constitute part of the adjudicator's mandate under s. 19(1)(j) - The court concluded the adjudicator's decision would be reviewed on a standard of correctness - See paragraphs 20 to 21.

Aliens - Topic 2.1

Definitions and general principles - Legislation - Application - [See second Statutes - Topic 6305 ].

Aliens - Topic 1744.2

Exclusion and expulsion - Immigration - Exclusion - Particular persons - Persons who have committed war crimes or crimes against humanity - The Convention Refugee Determination Division (CRDD) determined that Varela was excluded from refugee protection by art. 1F(a) of the Convention (crimes against humanity) - The Federal Court of Appeal denied leave to appeal the CRDD's decision - An adjudicator later commenced an inquiry into whether Varela was inadmissible under s. 19(1)(j) of the Immigration Act (war crimes or crimes against humanity) - The Minister argued that the adjudicator was bound by the decision in Figueroa v. Canada (Minister of Citizenship and Immigration) wherein Pinard, J., stated that a finding that a refugee was excluded from the protection of the Convention under art. 1F(a) demonstrated that the first part of the test under s. 19(1)(j) of the Act had been fulfilled - The adjudicator held that he was not bound by the earlier decision of the CRDD - The Federal Court of Canada, Trial Division, dismissed an application for judicial review, holding that the adjudicator committed no error of law in concluding that he was not bound by the earlier determination by the CRDD - See paragraphs 22 to 26.

Statutes - Topic 6305

Operation and effect - Effect on earlier statutes - Substitutions - Effect on proceedings commenced under repealed statute - An adjudicator commenced an inquiry into whether Varela was an inadmissible person under s. 19(1)(j) of the Immigration Act - The inquiry was adjourned sine die when an application was brought for judicial review of the adjudicator's decision that he was not bound by a previous decision of the Convention Refugee Determination Division that Varela was excluded from refugee protection by art. 1F(a) of the Convention - Since the decision under review was made, s. 19(1)(j) of the Act was repealed and replaced in consequence of the enactment of the Crimes Against Humanity and War Crimes Act - At issue was whether the application for judicial review was moot given the intervening amendments to the applicable law - The Federal Court of Canada, Trial Division, held that neither the application for judicial review nor the inquiry before the adjudicator was moot - See paragraphs 14 to 15.

Statutes - Topic 6305

Operation and effect - Effect on earlier statutes - Substitutions - Effect on proceedings commenced under repealed statute - An adjudicator commenced an inquiry into whether Varela was an inadmissible person under s. 19(1)(j) of the Immigration Act - The inquiry was adjourned sine die when an application was brought for judicial review of the adjudicator's decision that he was not bound by a previous decision of the Convention Refugee Determination Division that Varela was excluded from refugee protection by art. 1F(a) of the Convention - Since the decision under review was made, s. 19(1)(j) of the Act was repealed and replaced in consequence of the enactment of the Crimes Against Humanity and War Crimes Act - The Crimes Against Humanity and War Crimes Act contained no transitional provision in relation to an inquiry under s. 19(1)(j) of the Immigration Act that was in progress, or was suspended, at the time that the Act came into force - The Federal Court of Canada, Trial Division, considered s. 44 of the Interpretation Act and concluded that the new law should be applied by the adjudicator when the inquiry was resumed - See paragraphs 16 to 19.

Statutes - Topic 6348

Operation and effect - Effect on earlier statutes - Procedure and remedies - Continuation of proceedings commenced under earlier statute - [See second Statutes - Topic 6305 ].

Cases Noticed:

Figueroa et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2000), 181 F.T.R. 242 (T.D.), consd. [para. 1, footnote 1].

Figueroa et al. v. Canada (Ministre de la Citoyenneté et de l'Immigration) (2001), 278 N.R. 27 (F.C.A.), consd. [para. 9, footnote 5].

Chieu v. Canada (Minister of Citizenship and Immigration) (2001), 280 N.R. 268 (S.C.C.), refd to. [para. 20, footnote 8].

Bains v. Minister of Employment and Immigration (1990), 109 N.R. 239; 47 Admin L.R. 317 (F.C.A.), refd to. [para. 25, footnote 11].

Committee for Justice and Liberty Foundation et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, refd to. [para. 27, footnote 12].

Grandison v. Canada (Minister of Citizenship and Immigration) (2000), 259 N.R. 81; 8 Imm. L.R.(3d) 130 (F.C.A.), refd to. [para. 31, footnote 13].

Statutes Noticed:

Immigration Act, R.S.C. 1985, c. I-2, sect. 19(1)(j) [para. 2].

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes (3rd Ed. 1994), p. 526 [para. 17, footnote 6].

Counsel:

Donald A. MacIntosh, for the applicant;

Micheal Crane, for the respondent.

Solicitors of Record:

Morris Rosenberg, Deputy Attorney General of Canada, Ottawa, Ontario, for the applicant;

Micheal Crane, Toronto, Ontario, for the respondent.

This application was heard on January 10, 2002, at Toronto, Ontario, before Gibson, J., of the Federal Court of Canada, Trial Division, who delivered the following decision on February 14, 2002.