Date: 19981204
Docket: IMM-6162-98
BETWEEN:
ORLANDO QUINTANA MASSIPE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered orally from the bench in Ottawa, Ontario,
by conference call, on December 2, 1998)
BLAIS J.
[1] This is a motion to stay an order for deportation scheduled for December 3, 1998.
[2] I will decide on the preliminary objection by the applicant"s counsel relating to the documents filed by the respondent"s counsel. The applicant"s counsel suggested that the evidence filed and the affidavit of Ms. Anna Manzo should be set aside because there is not a real mention of the veracity of those documents and the documents were not properly introduced.
[3] Answering to that, the respondent"s counsel suggested that pursuant to Rule 81(1) and 81(2) of the Federal Court Rules 1998 , the affidavit and the documents filed should be accepted.
[4] I think that pursuant to Rule 81(1) and 81(2) the affidavit of Ms. Manzo on hearsay evidence may be accepted and will be accepted.
[5] The evidence introduced with the affidavit meets the criteria of reliability and necessity that has been established by the jurisprudence. I refer to Sgayias1
| The Federal Court of Appeal has adopted this approach in determining the admissibility of hearsay given by way of affidavit: see Éthier v. Canada (R.C.M.P. Commissioner) (1993) 2 F.C. 659 (C.A.). |
| Where the affidavit is on belief. The grounds of that belief must be stated. The affidavit should identify the source of the information as a person with a first hand knowledge and should explain the basis for allowing the information received from that person. |
[6] In this case, the criteria are met, so the objection is dismissed.
[7] Now on the three elements of the test established by the Supreme Court of Canada.
THE SERIOUS ISSUE
[8] The applicant"s counsel raised two points. The first one is whether the applicant is a permanent resident of Honduras or United States of America. The applicant"s counsel suggests that the applicant is a resident of Honduras and that the Minister does not have the authority under section 52(2) to deport the applicant to the United States, following the Act.
[9] The second element that the applicant"s counsel considers as a serious issue is that the applicant was not given an opportunity to be heard on the determination that he is a danger to the public.
[10] Is the applicant a resident of Honduras or the United States? Is it a serious issue? First of all, I think that the evidence before the Court shows that the applicant himself said, at the port of entry, that he is a resident of the United States. He even gave his address in Florida. He mentioned that he spent eight months in Honduras as a visitor and he left Honduras because his permit had expired. Many other documents, even a document signed by the applicant, demonstrate that he is a permanent resident in the United States.
[11] I also considered the particular document referred to by the applicant"s counsel which is a certification issued by a Honduras Government officer, that was filed with its translation. I read it cautiously and even that document does not mean that he is a permanent resident of Honduras, it means that he is in process to become a permanent resident of Honduras. This decision mentioned that it will be processed to the ministry and this document has been issued on October 30, 1998, which is more than three months after the applicant left Honduras and came to Canada on July 24, 1998.
[12] The conclusion on that point is that the applicant has not demonstrated that he is a permanent resident of Honduras but that the country in which he last permanently resided before he came to Canada, is the United States.
[13] On the second point, the applicant"s counsel suggested that the applicant was not given the opportunity to be heard. I have read the evidence as well. The evidence shows that Mr. Morris who made the decision had served the applicant with the notice of intention to seek the Minister"s opinion and that the document was translated, what the applicant"s counsel has admitted earlier. The document was translated to the applicant on October 22, 1998 and his counsel was also asked whether he had the intention to make written submissions.
[14] I read, as well, the statutory declaration of Mr. Caden who was the applicant"s counsel at the time. Mr. Caden signed a statutory declaration today and mentioned that, through a friend of the applicant, he learned that his client had received documents but was, as I understand, mislead about the content of those documents. This counsel never mentioned that he had the intention to ask for a delay to present submissions or that he wanted to make submissions, he decided not to make submissions.
[15] I think the respondent has not any responsibility relating to that and, as it was mentioned earlier by the respondent"s counsel, the onus is on the applicant about whether or not the applicant is a danger to the public, so, was the applicant a danger to the public? Was the decision of the Minister"s delegate reasonable in those circumstances? To answer the question, I will refer to a decision that I had and that was also filed by the respondent"s counsel, Mensinger v. Canada (M.E.I.) [1987] 1 F.C. at page 60 and I quote:
| On the facts, the applicant has failed to discharge the onus of proving that the decision to remove him to the United States was tantamount to a form of disguised extradition proceedings. |
[16] And by the way, the decision we are referring to, has many similar elements contained in the case before the Court on page 60:
| The real issue is to define the content of the duty of fairness as it applies to the specific situation. The basic objective of the doctrine of fairness is to ensure that the interested individual is entitled to have the degree of participation necessary to set out relevant facts or arguments. But the procedure necessary to achieve this goal must be compatible with the ability of the public authority to discharge its statutory obligations in an efficient and effective manner. In this case, the decision was made in accordance with the principles of fairness. |
| (...) |
On page 71:
| In exercising a supervisory jurisdiction, it is the court"s function to ensure that minimum standards of procedural decency are observed and a reluctance to interfere should prevail unless there is sufficient evidence to satisfy the court that the administrative authority"s decision was unreasonable and caused a serious injustice to the applicant. |
| (...) |
| The evidence supports a finding that at the time Mr. Pirie made the decision to remove the applicant to the United States, he had before him all the facts and the arguments of which he needed to be informed in order to reach a rational decision. |
| (...) |
| The facts before me support a finding that there was sufficient evidence upon which the respondents could reasonably have come to the conclusion and make the decision they did. |
[17] The two elements that were raised by the applicant"s counsel do not constitute a serious issue. Therefore, it is not necessary to address the two other criteria.
[18] For these reasons, the motion for stay is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
DECEMBER 4, 1998
__________________1 Sgayias Federal Court Practices (1998) Transitional Supplement under section 81(1) and 81(2) p. 30.