Vincenzo Prata (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Trial Division, Gibson J.—Toronto, June 12 and
19, 1972.
Immigration Appeal Board—Bail—Mandamus—Deporta-
tion order—Dismissal of appeal from—Refusal of bail—
Application for mandamus—Federal Court Act, section
18—Immigration Appeal Board Act, R.S.C. 1970, c. I-3. ss.
18(1), 23(1).
The Immigration Appeal Board dismissed Fs appeal from
a deportation order but refused bail pending an appeal to
the Federal Court on the ground of lack of jurisdiction. P
applied to the Trial Division under section 18 of the Federal
Court Act for an order of mandamus.
Held, P was entitled to an order requiring the Immigration
Appeal Board to hear his application for bail on its merits.
APPLICATION for mandamus.
J. A. Hoolihan, Q.C. for appellant.
E. A. Bowie for respondent.
GIBsoN J.—On April 7, 1972, there was
granted an application made on behalf of the
appellant for leave to appeal to the Federal
Court of Canada against the judgment of the
Immigration Appeal Board dated January 14,
1972 dismissing the appellant's appeal from an
Order of Deportation made on October 29,
1971.
On that application, after the granting of
leave to appeal, counsel for the appellant asked
the Federal Court of Appeal whether bail could
be sought from that Court at which time the
Court informally told counsel that the Federal
Court of Appeal had no jurisdiction in granting
bail and referred counsel for the appellant to
seek bail from the Immigration Appeal Board.
Apparently counsel for the appellant applied
for bail to the Immigration Appeal Board by
way of motion, which motion was heard on
May 17, 1972 and the Board by formal Order
dated June 1, 1972 and signed June 5, 1972
dismissed the motion in these words:
This Board doth order that the said motion be and the
same is hereby dismissed by reason that the Board lacks
jurisdiction to adjudicate the matter.
The applicant then launched this application
before the Trial Division of the Federal Court
of Canada under section 18' of the Federal
Court Act requesting an order of mandamus
directed to the Immigration Appeal Board
requiring it to hear his application for bail on its
merits on the grounds that the Immigration
Appeal Board alone has jurisdiction to entertain
an application for bail, notwithstanding the fact
that the said appeal is pending before the Feder
al Court of Appeal.
Section 18(1) and section 23(1) of the Immi
gration Appeal Board Act R.S.C. 1970, c. 1-3,
read as follows:
18. (1) A person who is being detained pending the hear
ing and disposition of an appeal under this Act may apply to
the Board for his release and the Board may, notwithstand
ing anything in the Immigration Act, order his release.
23. (1) An appeal lies to the Federal Court of Appeal on
any question of law, including a question of jurisdiction,
from a decision of the Board on an appeal under this Act if
leave to appeal is granted by that Court within fifteen days
after the decision appealed from is pronounced or within
such extended time as a judge of that Court may, for special
reasons, allow.
Order to go requiring the Immigration Appeal
Board to hear the applicant's application for
bail on its merits. No costs.
I 18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohi
bition, writ of mandamus or writ of quo warranto, or
grant declaratory relief, against any federal board, com
mission or other tribunal; and
(b) to hear and determine any application or other pro
ceeding for relief in the nature of relief contemplated by
paragraph (a), including any proceeding brought against
the Attorney General of Canada, to obtain relief against a
federal board, commission or other tribunal.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.