Humphrey v. Canada (Minister of Citizenship and Immigration), 2005 FC 165

Date: 20050601

Docket: IMM-973-04

Citation: 2005 FC 165

Toronto, Ontario, June 1^st, 2005

Present:           The Honourable Mr. Justice Campbell                                

BETWEEN:

                                                          LENNOX HUMPHREY

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

AMENDED REASONS FOR ORDER AND ORDER

[1]                On May 20, 1997, the Appeal Division of the Immigration and Refugee Board granted the Applicant a stay of deportation for five years, as it was entitled to do under the then applicable Immigration Act.

[2]                A term of the stay order is that the Applicant must "keep the peace and be of good behaviour". Between June 1, 2000 and May 15, 2003, the Applicant committed 18 driving offences, all under Ontario provincial legislation. As a result, the Immigration Appeal Division of the Immigration and Refugee Board (the "Appeal Division") acting under the now applicable Immigration and Refugee Protection Act ("the IRPA") cancelled the Applicant's stay of deportation; the decision reads as follows:

A stay under the former Immigration Act was issued to the appellant. The appellant's removal order was based on serious criminality which the Immigration and Refugee Protection Act (IRPA) transition provisions at s. 320(5) describe. The appellant has breached the conditions of his stay with conditions subsequent to June 28, 2002. Therefore IRPA s.197 applies and s.68 [sic] [s.64] and s. 68(4) apply.

In that the appellant was found inadmissible on the basis of crime of which he was convicted in Canada and was sentenced to a term of imprisonment of at least two years, there is no appeal to the Immigration Appeal Division (IAD).

The Immigration Appeal Division orders that its order signed the 28^th day of May, 1997, staying the deportation order of the appellant be cancelled.

Signed the 15^th day of January, 2004.

[Italics emphasis added]

(Applicant's Application Record, p.32)

As it is agreed that the Appeal Division erroneously applied s.68(4), I find the decision rendered was made in reviewable error.

                                               ORDER

Accordingly, I set aside the Appeal Division's decision.

"Douglas R. Campbell"

                                                                                                   J.F.C.                        

                                     FEDERAL COURT

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-973-04

STYLE OF CAUSE:               LENNOX HUMPHREY

Applicant

and

THE MINISTER OF CITIZENSHIP AND

IMMIGRATION

Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       FEBRUARY 2, 2005   

AMENDED REASONS FOR

ORDER AND ORDER BY: CAMPBELL J.

DATED:                                              JUNE 1, 2005

APPEARANCES BY:                        

Irvin H. Sherman, Q.C.              For the Applicant

Stephen Jarvis                           For the Respondent

SOLICITORS OF RECORD:          

Martinello & Associates

Barristers and Solicitors

Toronto, Ontario                                   For the Applicant                      

John H. Sims, Q.C.

Deputy Attorney General of Canada      For the Respondent