Category: Appeals of Deporation Orders to IAD

The Court held that the applicant who was sentenced to 18 months plus 11 months for time served had a sentence of more than two years and had no right to appeal to the Appeal Division.

The Court set aside a decision dismissing a deportation where the Minister and counsel had made a joint submission for a stay: [18] Having received the joint submission albeit unexpectedly, the tribunal breached procedural fairness by rejecting it outright without asking for further input. The applicant in these circumstances was not given a fair hearing. The consequences on the applicant were significant. Clearly, a review of the terms and conditions of the proposed stay which included a requirement he not commit any criminal offences, make reasonable efforts to seek and maintain full time employment, engage in and continue psychotherapy, submit to random urine drug testing and respect court orders (which would include respecting the restraining order) address the tribunal’s concerns. The tribunal provided no analysis and did not even refer to the proposed terms and conditions. [19] Second, it is also clear the tribunal did not give serious consideration to the joint submission. Again, it provided no analysis of its terms and dismissed the joint submission in a perfunctory manner.

The Court set aside a decision upholding a deportation order holding that the tribunal failed to properly consider hardship on return: [21] I agree with the applicant that the IAD’s analysis of the hardship to which he would be subject in Sri Lanka was confused by its reference to his lack of rehabilitation in Canada. While rehabilitation and establishment in Canada are among the factors which the IAD must take into account, they bear no relation to the degree of hardship a person will suffer in a country to which he or she is removed. A person who is not established in Canada may yet have no ties to the country to which he or she is removed, and suffer great difficulties there. Conversely, one may be well- established in Canada, and yet be able to return to another country without suffering undue hardship.

The issue of the exercise of discretion with respect to the residency requirement is not one which has received much attention. This indeed is the first case I am aware of where the court has done a detailed analysis of the factors. It is also noteworthy for its careful application of Khosa to the question of the standard of review. .

The Court held that in the circumstances of the case incompetent counsel was a breach of natural justice.

The Court held that the appeal division did not err when it considered the fact the appellant was a member of a gang when exercising its discretion and when it considered the fact that the appellant's presence in Canada posed a secondary risk to his close family.

The Court found an inference of the Appeal Division unreasonable and set aside the decision noting:[18] The Panel found the Applicant not to be credible only with respect to two aspects of his testimony. It did not believe the Applicant when he testified that the form was completed by the wife of a co-worker and that he signed and mailed it without reading it. [19] The Panel found no other aspect of the Applicant’s testimony not to be credible. In fact, his testimony in all other respects appears to have been fully accepted by the Panel. Much of it was corroborated by his aunt, the only other witness at the hearing. The evidence of a witness is presumed to be truthful, unless there exists a valid reason to doubt it: Maldonado v, Canada (Minister of Employment and Immigration) (1979), 31 N.R. 34 (F.C.A.). One must ask what reasons the Panel offers to doubt the Applicant’s evidence that the form was prepared by someone other than himself.

The Court held that the Immigration Appeal Division erred in taking into evidence the applicant's record under the Youth Criminal Justice Act without first determining whether it was legally releasable under the Act.