Date: 19981218
Docket: IMM-3636-97
BETWEEN: EDUARDO MANUEL MELO
Applicant
AND: THE MINISTER of CITIZENSHIP and IMMIGRATION
Respondent
REASONS FOR ORDER
DENAULT J:
[1] This is an application for judicial review of a decision of the Immigration Appeal Division (the Appeal Division) wherein the applicant's appeal of his deportation order was dismissed. The applicant, who holds Portuguese citizenship, is a permanent resident of Canada, having arrived here 30 years ago at the age of six. He became the subject of a deportation order after being convicted of aggravated assault in January 1991.
[2] Following a three day hearing before the Appeal Division, the presiding member found that "[a]ll the circumstances of the case do not warrant the quashing of the deportation order and allowing the appeal, as counsel for the appellant asked".[1]
[3] Although counsel for the applicant had not requested a stay of deportation as an alternative to having the deportation order quashed, the presiding member did consider that possibility. Having systematically scrutinized the evidence before him, the presiding member concluded that the applicant's appeal ought to be dismissed. He articulated that conclusion as follows: In spite of the large body of evidence adduced which might ordinarily warrant a stay (probation), it would be irresponsible for this tribunal to grant one without the non-association term. The appellant's close ties to several persons with criminal records militates [sic] against inclusion of that term. Thus, by his own words, deed[s] and choices, the appellant has himself foreclosed his options and left the Appeal Division with no other choice but to dismiss his appeal.[2]
[4] In the case at bar, the applicant maintains that the panel erred in law in the following manner: 1) by fettering its discretion when it considered that a condition of non-association would have to be imposed on the applicant if his deportation order were stayed; 2) by assuming, without putting the question to the applicant directly, that he would not comply with a condition of non-association if such a condition were imposed; 3) by violating his right to freedom of association under subsection 2(d) of the Charter of Rights and Freedoms through the imposition of a condition of non-association; 4) by failing to consider relevant evidence with respect to his children from his first marriage and the potential effect on his child with his common law wife; and 5) by considering irrelevant or inadmissible evidence, namely surveillance reports by unnamed police officers.
[5] Significantly, the applicant never challenged the validity of the deportation order. Instead, he sought discretionary relief on appeal, based on paragraph 70(1)(b) of the Immigration Act "on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada".
[6] Following a thorough review of the file and a close reading of the decision of the Immigration Appeal Division, I am of the opinion that the applicant has failed to demonstrate that the Appeal Division either improperly exercised its discretion or erred in its assessment or apprehension of the evidence.
[7] Despite the fact that counsel for the appellant only sought the quashing of the deportation order before the Appeal Division, never requesting a stay as an alternate remedy, the presiding member, well aware as he was of the potential remedy of a stay on terms and conditions, engaged in a lengthy and meticulous examination of the evidence. He examined, in turn, the evidence of numerous witnesses produced by the applicant, his history as a boxer, his criminal record and his long association and friendship with persons who have criminal records and are linked to organized crime, his finances, his efforts to control his temper through counselling as well as medication and the dislocation which the applicant and his relatives would be likely to experience upon his removal from Canada. The presiding member considered numerous factors, both favourable and unfavourable to the appellant, before deciding that "...this case is clearly not one where it would be appropriate to quash the deportation order outright and allow the appeal."[3]
[8] Noting counsel for the appellant's reluctance to seek a stay as an alternate and obvious remedy, the presiding member proceeded to explain that the standard non-association condition imposed in cases involving criminality, namely that the person be required to avoid knowingly associating with persons who have a criminal record or are engaged in criminal activity, would be tantamount to "an exercise in utter futility", given the circumstances of the case.[4]In so doing, the Appeal Division did not fetter its discretion. On the contrary, having evaluated the evidence in the case, it was open to the Board, in the exercise of its discretion, to find, as it ultimately did, that "...it would be irresponsible... to grant [a stay] without the non-association term".[5]
[9] With respect to the potential violation of the applicant's right to freedom of association, as guaranteed by s. 2(d) of the Charter, this is a non-issue in the case at bar because no condition of non-association was ever imposed on the applicant. As such the purported violation is merely speculative.
[10] The applicant's argument that the Board failed to consider relevant evidence relative to the potential impact of his deportation on his children from his previous marriage and his current relationship is specious. The Board did in fact consider this issue.[6] The fact that the Board chose to be succinct in its reasons relative to that issue is not to be considered synonymous with failure to consider the issue.
[11] Given the above, nothing in this case warrants the intervention of this Court. Accordingly, this application must be dismissed.
[12] Counsel for the applicant has submitted four questions for certification. They can be summarized this way :
QUESTION 1. Did the Board err in law in assuming that a non-association condition was a standard condition of a stay in the case of a permanent resident being ordered deported on the basis of a criminal conviction? QUESTION 2. Does freedom of association, within the meaning of s. 2(d) of the Charter of Rights and Freedoms, impose an obligation on a Board to assess the need for a condition of non-association in the circumstances of each case when it is considering the imposition of such a condition? QUESTION 3. Did the Board err in law in accepting evidence in respect of which witnesses were not cross-examined despite the fact that such witnesses were available for cross-examination? QUESTION 4. In the absence of a request by applicant's counsel for a stay of deportation, is the Board obligated to consider the issuance of a stay? If so, does the duty of fairness require that the Board canvass the person concerned prior to imposing conditions in order to ascertain that person's willingness and/or ability to comply with the conditions being contemplated?
[13] The questions proposed for certification may be disposed of as follows: ANSWERS 1 and 2. These are purely theoretical questions given that, in the case at bar, counsel for the applicant neither sought a stay of deportation as a primary nor as an alternative remedy. A certified question must be a question which transcends the interests of the immediate parties , contemplates issues of broad significance or of general application and is determinative of the appeal.[7] These are not such questions. ANSWER 3. The proposed question is rendered purely academic by the fact that the surveillance evidence to which it refers was found by the Board to operate, ultimately, in the applicant's favour.[8] ANSWER 4. Paragraph 73 (1)(c) of the Immigration Act does not impose upon the Appeal Division a statutory obligation to direct a stay in the case of an appeal pursuant to paragraph 70(1)(b) of the Act. In exercising its discretion, the Appeal Division may, however, consider the issuance of a stay of deportation order. The proposed question is purely academic, in the instant case, because the Appeal Division did in fact consider the issuance of a stay. Its findings and conclusions relative to a stay constitute the obiter dicta of its decision given the fact that counsel for the applicant never requested a stay. No question arising from the obiter dicta will be certified.
[14] As this case raises no serious question of general importance within the meaning of s. 83 of the Immigration Act, no question will be certified.
J.F.C.C.