Date: 20080422
Docket: IMM-2367-07
Citation: 2008 FC 526
Ottawa, Ontario, April 22, 2008
PRESENT: The Honourable Barry Strayer, Deputy Judge
BETWEEN:
GREGORY
BARRY GITTENS
Applicant
and
THE MINISTER OF PUBLIC SAFETY
AND EMERGENCY PREPAREDNESS
Respondent
FURTHER REASONS FOR JUDGMENT
[1]
On
March 25, 2008, I issued reasons in this matter. At the request of counsel at
the hearing, I agreed to withhold judgment until they had an opportunity to
review my reasons in order to decide whether to request that I certify
questions for consideration in a possible appeal to the Federal Court of
Appeal.
[2]
On
April 9, 2008, counsel for the Applicant requested that I certify the following
questions:
1.
Does
procedural fairness require the IAD to review the factors set out in s. 48(4)
of the IAD Rules in determining whether or not an adjournment should be granted
or is this provision merely a guide?
2.
When
the Board considers a request for an adjournment under subsection 48(4) of the
Appeal Division Rules, do subsections
(g) any previous delays and the reasons
for them; and
(i) whether allowing the
application would unreasonably delay the proceedings
refer to
delays in relation to the specific proceeding before the Board or to the
entire length of time since the Appellant was first ordered removed? Is the
Appellant’s right to procedural fairness breached if a negative decision is
arrived at and only the latter was considered?
3.
When
the Board considers a request for an adjournment under subsection 48(4) of the
Appeal Division Rules, is subsection
(h) whether
the time and date fixed for the proceeding were peremptory
an irrelevant
consideration if the time and date fixed for the proceeding were not
peremptory; or does it remain a relevant factor that must be considered insofar
as it provides the Board more latitude to grant an adjournment? Is the
Appellant’s right to procedural fairness violated if a negative decision is
arrived at and the latter consideration was ignored?
4.
When
the best interests of children are under consideration, is the IAD required to
assess factors relevant to each child as opposed to merely accepting
that the best interests of all of a person’s children would be negatively
impacted by the removal of a parent?
[3]
On
April 16, 2008 counsel for the Respondent made submissions opposing the
certification of any of these questions.
[4]
By
paragraph 74(d) of the Immigration and Refugee Protection Act, I can
only certify such a question if it is a “serious” one “of general importance”.
I do not believe any of the proposed questions are of this nature.
[5]
The
first three questions relate to the refusal of the Immigration Appeal Division
(IAD) to grant an adjournment to enable a psychologist to testify orally in
place of the written report he provided. Basically whether an adjournment is
granted is for the discretion of the tribunal subject to the need to avoid a
denial of fairness, and in this particular situation the need to “consider any relevant
factors” listed in subsection 48(4) of the Immigration Appeal Division Rules.
[6]
I
have made findings that in the particular circumstances of this case the IAD
did have regard to all the relevant factors in subsection 48(4), and also
that in the circumstances of this case there was no denial of fairness. The
Applicant’s proposed questions would really be seeking to appeal these findings
of fact and fact and law and could have little importance beyond this case and
its particular circumstances. Furthermore, I believe the questions of law
suggested are not serious questions in the sense of raising matters of
significant doubt.
[7]
The
suggestion implicit is question 2 that the IAD should only have regard to
delays in respect of this particular hearing is untenable: this hearing was
part of an ongoing process of reviews of the stay of the deportation order made
in 2000, such review having been continued ever since 2002. As for question 3,
it is certainly not clear but it seems to raise the issue as to whether the date
fixed was “peremptory”. I do not accept that characterization of the date. Consultations
with counsel for the Applicant began in July, 2006 when a date was set for
December 15, 2006. Subsequent discussions with counsel concerned the invalidity
of Dr. Russell to attend as a witness on that date. Counsel requested a delay
and later suggested a postponement for over four months. The IAD after
considering this confirmed on November 9, 2006 that the date originally fixed
would be adhered to. However, the matter was raised again by counsel at the
beginning of the hearing, but in her opening submission for a delay she also
said “we are prepared to go”. At this time the panel ruled against further
delay and gave reasons for doing so. In the circumstances I cannot regard this
as the “peremptory” fixing of a date unless that term means that any date inconvenient
to one party is “peremptory”. In any event, subsection 48(4) of the Rules does
not suggest that factor (h) is determinative of the need for an adjournment. It
is clear that the panel considered the request for an adjournment yet again on
the hearing date and again found that a delay was not justified. Therefore the
question if certified would make no difference to the outcome of this case.
[8]
As
for the fourth question, it appears to take issue with the IAD’s findings that
the best interests of both children would be negatively affected. I am unable
to see how a separate consideration of each that might have revealed that only
one child would be negatively affected, or that one could be affected more than
another, could alter the outcome of the IAD’s decision. I observed that the
IAD, although having found both children could be negatively affected,
nevertheless concluded that the protection of the Canadian public must be given
more weight. I concluded that this was a decision open to the IAD, and the
particular question proposed by the Applicant, even if answered in the
affirmative, could not change the outcome were a new hearing ordered.
[9]
I
will therefore not certify any question.
JUDGMENT
IT IS THEREBY ORDERED
AND ADJUDGED THAT:
(1)
The
application for judicial review of a decision of the Immigration and Refugee
Board (Immigration Appeal Division) of May 25, 2007, cancelling the Applicant’s
stay of deportation and dismissing his appeal of the deportation order be
dismissed; and
(2)
No
question be certified.
“Barry
L. Strayer”
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