Date: 20000718
Docket: IMM-3163-99
Toronto, Ontario, Tuesday the 18th day of July, 2000
PRESENT: The Honourable Madam Justice Reed
BETWEEN:
CALBERT BERNARD WALTERS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For the reasons issued to-day the application for judicial review is dismissed.
"B. Reed"
J.F.C.C.
Date: 20000718
Docket: IMM-3163-99
BETWEEN:
CALBERT BERNARD WALTERS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED, J.:
These reasons relate to the judicial review of a decision of an adjudicator, dated June 16, 1999, issuing a conditional deportation order to the applicant. The order is conditional because the applicant indicated, at an earlier hearing before an adjudicator, on May 19, 1999, that he wished to make a refugee claim.
The applicant arrived in Canada, as a visitor, from Jamaica on December 9, 1992, and subsequently overstayed his visitor's status. On April 28, 1999, he was arrested and charged by the Peel police with obstructing a police officer; this charge was dismissed without a conviction on June 21, 1999. The altercation with the police brought the applicant to the attention of immigration officials and this led, first, to a detention review and, then, an immigration hearing on May 19, 1999. The applicant alleges that consequent on the latter, a conditional departure order was issued to him. The applicant states that the adjudicator who issued the conditional deportation order, on June 16, 1999, was therefore without jurisdiction to issue that order.
The adjudicator's notes on the summary sheet for the May 19, 1999, hearing indicate that a determination of the applicant's immigration status was not done at that time:
| SIO attempted to do determination after DR [detention review] completed. He brought with him computer generated departure order. Csl [counsel] advised him that pc [person concerned] is making a refugee claim - ths. SIO determination not done this date therefore as PGA [SIO's initials] did not have SIO conditional DPO [departure order]. |
The transcript of the hearing of June 16, 1999, reveals that the case presenting officer described the events of May 19, 1999, as being an attempt by the immigration officer to serve the applicant with an order, which he refused to accept:
| . . . |
| Just a brief comment by the officer who..previously he considered that the making of a refugee claim is a delay tactic on the part of the subject. He also attempted to serve subject with a Conditional or a Departure Order which the subject refused to accept and his conclusion was that this person ought to have a Deportation Order. He is a person who the Minister would prefer to have an option to review the return to Canada or should be required to get the consent from the Minister in order to return here and because the citizenship is Jamaican there is a visa requirement at the moment, so it's our position that Ministerial consent would not pose an undue hardship. |
. . .
The applicant's representative, at the May 19, 1999 hearing objected to the allegation that the applicant had refused anything:
| . . . |
| COUNSEL: I'm really confused by the comment made by counsel about the previous periods of..Immigration Officer when we had the interview Mr. Walters indicated he wanted to make a refugee claim. There was no dispute of refusing anything at all. That bothers me because I heard that the refugee claim was made and already given by Mr. Allchin. That is (inaudible). I can't understand why that comment is made at all. |
| . . . |
The actual note on the file indicates that the:
| PGA also served pc with departure order that he refused to sign as Laws [the applicant's representative] told him he was making a claim. |
Whether the applicant refused to sign a departure order, on May 19, or whether its non-issuance was merely the consequence of a refugee claim having been made, it is clear that no order was issued that day. There is no copy of any such order on the file. The applicant has not produced a copy of any such order. The notes on the summary sheet indicate that a determination to issue a conditional departure order or a conditional deportation order was not made because the immigration officer did not have a conditional order with him. On June 16, 1999, the applicant did not claim to have been issued such an order. I conclude that an order did not issue on May 19, 1999, and thus the order of June 16, 1999, was validly made.
The applicant, in his written submissions, claimed that he had been denied a fair hearing on June 16, 1999, because he understood the hearing to be a detention review, not an immigration inquiry. Whether or not the applicant understood, prior to the hearing, that there would be both a detention review and an immigration inquiry on May 19, 1999, does not constitute a breach of the rules of fairness because the transcript of the hearing reveals that the applicant's counsel, agreed to proceed with the inquiry, even if such notice had not been given:
| Adjudicator: ...Counsel, are you prepared to proceed with the inquiry today? |
| Counsel: This is a detention review. |
| Adjudicator: No, this is an inquiry, Counsel |
| Counsel: No, I"m not. |
| Adjudicator: Why are you not prepared to proceed, Counsel? |
| Counsel: When I spoke earlier this morning said the inquiry was Wednesday. |
| Adjudicator: Today is Wednesday |
| Counsel: Next Wednesday. |
| Adjudicator: No, I told you if you were not here this afternoon I would postpone it to next Wednesday, Counsel. I did not..I did not assure you that it would be conducted next Wednesday. Can you advise why you"re not prepared to proceed with this inquiry? |
| Counsel: We"re not..it was a detention review. We have a notice here for detention review. |
| Adjudicator: Counsel, this is an inquiry so there"s no point in arguing that it"s a detention review when I"ve already advised you that it is an inquiry. |
| Counsel: Okay we are prepared to proceed, Ma"am. |
Lastly, the applicant, in his written submissions, argues that the adjudicator took into account irrelevant factors, when deciding to issue a conditional deportation order rather than a conditional departure order. The record does not support that allegation. The adjudicator's reasons were articulated as follows:
| ...On the basis of the information presented it is my view that a Conditional Deportation Order is warranted in your particular matter. I appreciate counsel"s submissions that there are factors that you have a Canadian citizen..Canadian citizen child and that your fiancee who is also a Canadian who you plan to marry, however your history is one of lack of compliance and lack of regard for the law in this country. |
| It appears that you were ..it doesn"t appear. The evidence at the inquiry is clearly that you"ve been here since 1991. You did not come to the attention of Immigration voluntarily. That when arrested by ..when stopped by the police you ran because you agreed you were here illegally and you knew you were in violation of the law. That you had (inaudible) Canada. That you prevented Immigration officials from pursuing their duty by virtue of not coming forward voluntarily and using an alias to hide your identity. |
| You have demonstrated by virtue of these actions that you can and will do whatever is required and you have no or little regard for the law in this country. I don"t believe that given these circumstances that you ..I"m sorry, let me rephrase that. I believe that given these circumstances the Minister of Immigration ought to make a determination as to your eligibility to return in the future to Canada. |
. . .
| Okay. And although there are mitigating factors, that is although you do have a reason to want to return to Canada at a future time I don"t believe based on your history for this lack of regard for the law, so I am making a Conditional Deportation Order. |
For the reasons given, this application is dismissed.
"B. Reed"
Judge
TORONTO, ONTARIO
July 18, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-3163-99 |
| STYLE OF CAUSE: CALBERT BERNARD WALTERS |
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, JULY 17, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: REED J. |
DATED: TUESDAY, JULY 18, 2000
| APPEARANCES BY: Mr. Calbert Bernard Walters |
| For the Applicant, on his own behalf |
| Mr. Kevin Lunney |
For the Respondent
| SOLICITORS OF RECORD: Calbert Bernard Walters |
709-4 Knight Bridge Road
Brampton, Ontario
L6T 5L5
| For the Applicant, on his own behalf |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000718
Docket: IMM-3163-99
BETWEEN:
| CALBERT BERNARD WALTERS |
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| REASONS FOR ORDER |