Docket: IMM-4624-15
Citation:
2016 FC 1351
Ottawa, Ontario, December 8, 2016
PRESENT: The
Honourable Mr. Justice Russell
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BETWEEN:
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MARVIN DONOVAN
MCINTYRE
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application pursuant to s 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c 27 [Act] for
judicial review of a decision of the Immigration Appeal Division of the
Immigration and Refugee Board of Canada [IAD], dated September 10, 2015
[Decision], which dismissed the Applicant’s appeal of a removal order.
II.
BACKGROUND
[2]
The Applicant is a 53-year-old permanent
resident of Canada. He is originally from Jamaica and arrived in Canada in
2000, sponsored by his then-wife. The Applicant has two children and two
grandchildren.
[3]
The Applicant was issued a removal order after
being found to be a person described in s 36(1)(a) of the Act, having been
convicted of an offence for which a term of imprisonment of more than six months
was imposed or ten years or more could have been imposed. He appealed the
removal order on humanitarian and compassionate [H&C] grounds and
challenges the IAD’s dismissal of the appeal in this judicial review.
III.
DECISION UNDER REVIEW
[4]
The IAD dismissed the Applicant’s appeal after considering
the Applicant’s oral testimony and documentation on the grounds that the
Applicant did not establish that special relief was merited. The IAD (composed
of a one-person panel) premised its decision-making on the Ribic factors:
Ribic v Canada (Minister of Employment and Immigration), [1985]
IABD No 4 [Ribic]; Chieu v Canada (Minister of Citizenship and
Immigration), 2002 SCC 3 [Chieu]; Al Sagban v Canada (Minister of
Citizenship and Immigration), 2002 SCC 4.
[5]
The IAD first considered how the Applicant
obtained permanent resident status. The IAD viewed the Applicant’s testimony as
not credible and concluded that he fraudulently obtained his permanent resident
status in Canada and was not truthful in his testimony. The fact that the
Applicant landed as part of an orchestrated fraud weighed against granting him
special relief.
[6]
Next, the IAD considered the seriousness of the
offence. It was noted that the Applicant had had a similar conviction
overturned prior to the triggering offence. Additionally, the Applicant’s
behaviour was not an isolated event or the result of impairment; the illegal
conduct was planned and part of an organized, repetitive, and long-term pattern
of behaviour that was sexual in nature and involved vulnerable victims who were
minors. These considerations weighed against granting him special relief.
[7]
The IAD discussed the possibility of
rehabilitation, stating that the Applicant had completed therapy and was
subsequently described as “a low risk to reoffend”
by his psychiatrist. However, given the years of predatory behaviour, the IAD
did not accept that the Applicant was completely rehabilitated, only that it
was established there was a possibility of rehabilitation and that the
Applicant was committed to avoiding further criminality. Nonetheless, this
factor was deemed to be favourable in granting a stay of removal.
[8]
The Applicant’s degree of establishment in
Canada was the next factor assessed. The IAD referenced the Applicant’s poor
economic performance and future prospects and the fact that the Applicant was
raised, educated, and held employment in his home country before immigration to
Canada at age 39. The establishment factor was determined not to weigh in favour
of granting special relief.
[9]
The IAD then gave consideration to the
Applicant’s community and family support. The Applicant provided a letter of
financial support from his sister-in-law, two letters of support from his
children, and a letter from his church that indicated his volunteer work. While
the IAD found the Applicant’s family support in Canada weighed in favour of
granting special relief, the evidence was deemed minimal and, consequently,
this factor was not accorded significant positive weight.
[10]
In discussing the impact the Applicant’s removal
from Canada would have on members of his family and friends, the IAD concluded
this factor did not weigh in favour of granting special relief because there
was no evidence that anyone would suffer significant hardship as a result of
the removal.
[11]
Looking next to potential hardship on return to
Jamaica, the IAD considered that the Applicant had spent the vast majority of
his life in Jamaica and there were no language or cultural barriers to
re-entry. Although the Applicant had argued he would be unable to access
psychiatric treatment resources for his condition in Jamaica, the IAD noted
that the Applicant was not currently in therapy and did not have plans to
pursue further therapy. Finally, the IAD noted that the persecution the
Applicant might face as a homosexual man in Jamaica might have been a
compelling factor; however, no evidence regarding country conditions had been
submitted. Since the onus was on the Applicant to establish the situation in
Jamaica for homosexual men, the IAD did not take judicial notice. Thus, this
factor did not weigh in favour of granting special relief.
[12]
With regard to the best interests of the child,
only the interests of the Applicant’s two Canadian grandchildren and his
brother’s children were assessed. The IAD found there was no evidence to
suggest any of the children relied on the Applicant. He was also prohibited
from being alone with anyone under sixteen as a result of his conviction. As a
result, this factor did not weigh in favour of granting special relief.
[13]
After consideration of all the Ribic
factors, the IAD determined that the positive elements of the appeal were
insufficient to overcome the negative aspects and dismissed the appeal.
IV.
ISSUES
[14]
The Applicant submits the following are at issue
in this application:
1. What is the standard of review?
2. Was the Applicant denied procedural fairness due to the
negligence of his former representative?
3. Did the IAD fail to address why a stay of the removal order
was not warranted instead of a dismissal of the appeal, pursuant to s 68(1) of
the Act?
4. Was the IAD’s assessment of the Applicant’s establishment and
hardship unreasonable, in light of the evidence that he had two adult children
in Canada and regular work experience?
V.
STANDARD OF REVIEW
[15]
The Supreme Court of Canada in Dunsmuir v New
Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review
analysis need not be conducted in every instance. Instead, where the standard
of review applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[16]
The first issue concerns the Applicant’s right
to a fair proceeding, including competent representation. This is an issue of
procedural fairness and attracts the standard of correctness: Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa];
Mission Institution v Khela, 2014 SCC 24 at para 79; Galyas v Canada
(Citizenship and Immigration), 2013 FC 250 at para 27.
[17]
The second issue is about whether the IAD
incorrectly failed to address a stay of removal and is reviewed on a
correctness standard: Li v Canada (Citizenship and Immigration), 2015 FC
998 at para 16 [Li]; Lewis v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 1227 [Lewis].
[18]
The third issue goes to the overall
reasonableness of the IAD’s Decision.
[19]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law.” See Dunsmuir, above, at para 47, and Khosa, above,
at para 59. Put another way, the Court should intervene only if the
Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible
in respect of the facts and law.”
VI.
STATUTORY PROVISIONS
[20]
The following provisions from the Act are
relevant in this proceeding:
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Serious
criminality
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Grande
criminalité
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36 (1) A
permanent resident or a foreign national is inadmissible on grounds of
serious criminality for
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36 (1)
Emportent interdiction de territoire pour grande criminalité les faits
suivants :
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(a) having
been convicted in Canada of an offence under an Act of Parliament punishable
by a maximum term of imprisonment of at least 10 years, or of an offence
under an Act of Parliament for which a term of imprisonment of more than six
months has been imposed;
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(a) être
déclaré coupable au Canada d’une infraction à une loi fédérale punissable
d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi
fédérale pour laquelle un emprisonnement de plus de six mois est infligé;
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Removal
order stayed
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Sursis
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68 (1) To
stay a removal order, the Immigration Appeal Division must be satisfied,
taking into account the best interests of a child directly affected by the
decision, that sufficient humanitarian and compassionate considerations
warrant special relief in light of all the circumstances of the case.
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68 (1) Il est
sursis à la mesure de renvoi sur preuve qu’il y a — compte tenu de l’intérêt
supérieur de l’enfant directement touché — des motifs d’ordre humanitaire
justifiant, vu les autres circonstances de l’affaire, la prise de mesures
spéciales.
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VII.
ARGUMENTS
A.
Applicant
(1)
Professional Negligence
[21]
The Applicant says that the test for determining
whether the incompetence of counsel amounts to a breach of procedural fairness
is found in R v B (GD), 2000 SCC 22. The Supreme Court of Canada said at
paragraph 26 in that case that “it must be established,
first, that counsel’s acts or omissions constituted incompetence and second,
that a miscarriage of justice resulted.”
[22]
In the Decision, the IAD noted there was no
objective evidence about the country conditions in Jamaica for the lesbian,
gay, bisexual and transgender [LGBT] population and that this might have been “the most compelling aspect” in relation to the
potential foreign hardship analysis, thus demonstrating the importance this
evidence had on the Decision. The Applicant argues that his former
representative acted negligently by failing to submit evidence about the
conditions for the LGBT population in Jamaica. As a result, the Applicant’s
right to present his best case was prejudiced by the failure of his former
representative to provide objective evidence that showed he was at risk in
Jamaica as a gay man. The Applicant notified his former representative in
writing to request an explanation about why the country condition reports were
not tendered in support of the Applicant’s appeal. Thus, the Applicant has
shown he has met the test for incompetence counsel in this case.
[23]
The jurisprudence allows the Court to admit new
evidence when issues are raised with respect to procedural fairness. The
Applicant submits new evidence of recent country condition reports that show
homosexuality is illegal in Jamaica and that human rights violations ranging
from violent community attacks to loss of employment for LGBT persons whose
sexual orientation is discovered, exists amongst a “culture
of homophobia”. The disclosure of this evidence could have impacted the
outcome of the Decision and it is a miscarriage of justice for the appeal to
have been decided without a proper assessment of the hardship the Applicant
will face in Jamaica as a homosexual.
(2)
Reasons for Stay of Removal
[24]
In certain circumstances, the IAD is required to
address a request for a stay in its written reasons: see Lewis, above,
at para 14. If an applicant explicitly requests a stay of removal and the facts
suggest that a stay needs to be considered, the applicant is entitled to know
why a stay of removal is not ordered instead of dismissing the appeal: see Li,
above, at paras 25-26. The Applicant does not raise inadequate reasons as a
stand-alone ground, as there are two additional errors submitted.
[25]
The Applicant argues that the facts necessitate an
explanation for why his request for a stay of removal was not granted. The
Applicant’s psychiatrist stated that the Applicant was at “low risk” of reoffending and the IAD also noted that
it was “too early” to tell if the Applicant was
able to avoid future criminality. The analysis of the Applicant’s
rehabilitation potential also weighed in favour of granting a stay of removal,
yet the IAD did not explain why it chose not to grant a stay of removal. The
Applicant submits that the IAD erred in its failure to give any reasons as to
why a stay of removal was not appropriate for the Applicant.
(3)
Reasonableness of Assessment
[26]
The Applicant challenges the reasonableness of
the IAD’s assessment of his establishment in Canada, including family ties, as
well as the hardship that he faces in Jamaica. The Decision failed to refer to
the Applicant’s nearly 10 years of employment as a facilities transporter in a
hospital and other positions. The Applicant submits that it was unreasonable
for the IAD to find that his employment history is “very
poor” and failed to even refer to any period of employment that the
Applicant had in Canada prior to having conditions imposed on him that affected
his ability to secure employment.
[27]
The IAD was also unreasonable in its assessment of
the hardship that the Applicant’s family would face if he were removed from
Canada. The Applicant testified about the strength of his relationship with his
daughter and son, aged 21 and 26, respectively, who provided letters of support
in his appeal. The Applicant’s son, nephew, and sister-in-law also came to his
hearing as support persons. The Applicant submits that the analysis of the
hardship his family would face is cursory and does not assess the strength of
the relationship; instead, the analysis only considered that his family did not
rely on him financially.
B.
Respondent
(1)
Professional Negligence
[28]
While the Applicant has provided formal notice
under the protocol to former counsel of the allegations, there remains a
dispute regarding the allegations. Furthermore, the Respondent submits that the
Applicant mischaracterizes the Decision as stating that “the most compelling factor in assessing whether the
Applicant would face hardship is whether he would face persecution as a gay man
in Jamaica.” The Decision actually states “what
might have been the most compelling aspect of this factor is the persecution he
might face as a homosexual man in Jamaica.” Thus, the Applicant has not
demonstrated that, but for the alleged conduct, there is a reasonable
probability that the result of the original hearing would have been different.
(2)
Reasons for Stay of Removal
[29]
The Respondent submits that Lewis, above,
is not appropriate in these circumstances. First, Lewis was about an
unusual case, as noted by Justice Simpson. Second, post-Lewis,
inadequacy is no longer a stand-alone ground for review and forms part of the
reasonable analysis instead. Finally, the IAD understood a stay was being
requested and dismissed the appeal.
(3)
Reasonableness of Assessment
[30]
Since the standard of review for a discretionary
decision made by the IAD is reasonableness, significant judicial deference is
owed to IAD decisions and decisions based on the evaluation and weighing of
evidence before it: see Khosa, above, at paras 58 to 60.
VIII.
ANALYSIS
[31]
The Applicant has raised three major issues for
review and I will deal with each in turn.
A.
Breach of Procedural Fairness
[32]
The Applicant says that his representative
before the IAD did not provide any country condition reports about the risks
faced by gay men in Jamaica. He says this amounts to professional negligence
resulting in procedural unfairness because the IAD itself indicated in its
Decision that this “might have been the most compelling
aspect” of the foreign hardship he would face if returned to Jamaica.
However, because no evidence of the risks faced by gay men in Jamaica was
placed before the IAD, this potentially compelling factor was not considered
because the IAD refused to take judicial notice of the situation of homosexual
men in Jamaica so that the Applicant “failed to
establish that any particular hardship might befall him because of his sexual
orientation.”
[33]
I agree with the Respondent that:
9. The incompetence of counsel will
only constitute a breach of natural justice in “extraordinary circumstances.”
The incompetence must be sufficiently specific and clearly supported by the
evidence.
10. In order to establish that the
incompetence of one’s counsel resulted in a breach of procedural fairness, the
onus is on an applicant to establish the following tripartite test:
1) The representative’s alleged acts or omissions constituted
incompetence;
2) There was a miscarriage of justice in the sense that, but for
the alleged conduct, there is a reasonable probability that the result of the
original hearing would have been different; and,
3) The representative was given notice and a reasonable
opportunity to respond.
11. There is a high threshold
governing the circumstances and evidentiary criteria that must be met before
the Court will grant relief on the basis of the negligence of counsel.
12. The Supreme Court also confirmed
that the onus is on the applicant to establish the acts or omissions of counsel
that are alleged to have been incompetent and “the wisdom of hindsight has no
place in this assessment”.
13. With respect to the performance
component, the incompetence or negligence of the representative must be
sufficiently specific and clearly supported by the evidence.
14. With respect to the prejudice
component the Court must be satisfied that a miscarriage of justice resulted,
which must be “manifested in procedural unfairness, the reliability of the
trial result having been compromised, or another readily apparent form.”
15. Substantial prejudice must be
shown to flow from or in consequence of the actions of incompetent counsel. The
applicant must also establish that there is a reasonable probability that the
result would have been different, but for the incompetence of the
representative.
16. Where the applicant cannot meet
the prejudice component of the test then it is undesirable for the Court to
consider the performance component of the analysis. The object of an
ineffectiveness claim is not to grade counsel’s performance or professional
conduct; the latter is best left to the profession’s regulating body.
[references omitted]
[34]
In the present case, I believe that special and
exceptional circumstances exist that have resulted in a breach of procedural
fairness. The Applicant has notified previous counsel (an immigration
consultant) of the problem and, although the consultant may not agree that he
was negligent, there can be no doubt, in my view, that a failure to submit
country documentation about the risks faced by gay men in Jamaica meant that
evidence of high significance for the Applicant’s case was not before the IAD.
There is conflicting evidence between the Applicant and the consultant about
when the Applicant raised his homosexuality as an issue, but there is no doubt
that it was put forward as an issue before the IAD and that the consultant
failed to submit the usual objective evidence on risks to homosexuals in
Jamaica when there was ample opportunity to do so even after the hearing. The
consultant offers no explanation on this crucial point.
[35]
This case is exceptional in that the IAD goes as
far as it can to indicate that “[w]hat might have been
the most compelling aspect of this factor is the persecution he might face as a
homosexual man in Jamaica.” The IAD could only say that because it is
fully aware of what homosexual men face in Jamaica. I also believe that the
IAD, in saying what it did say, is indicating that evidence of high
significance that could impact its decision has not been placed before it.
[36]
The country reports on Jamaica demonstrate a
high level of risk for the LGBT community in Jamaica and gay men in particular.
Anyone who purports to represent Jamaican clients in the immigration context
knows this, so that the consultant’s failure to submit evidence on point
suggests a high degree of incompetence. The Human Rights Watch Report for
October 21, 2014 entitled “Not Safe at Home” is typical in its description
of how homophobic Jamaican society is, and that even the police are often
perpetrators of violence against the LGBT population. The report describes
widespread human rights violations against those whose homosexuality is
discovered, which often includes physical violence. The authoritative reports
speak of widespread unchecked homophobic violence in Jamaica. The United States
Department of State report for 2014 provides as follows:
Acts of Violence, Discrimination, and
Other Abuses Based on Sexual Orientation and Gender Identity
The law prohibits “acts of gross indecency”
(generally interpreted as any kind of physical intimacy) between persons of the
same sex, in public or in private, punishable by two years in prison. There is
also an “antibuggery” law that prohibits consensual same-sex sexual conduct
between men, which is punishable by up to 10 years in prison, but it was not
enforced during the year. Homophobia was widespread in the country, perpetuated
by the country’s dancehall culture through the songs and the behavior of some
musicians. Lesbian, gay, bisexual, and transgender (LGBT) persons faced
violence, harassment, and discrimination.
In July an official at J-FLAG, a prominent
LGBT NGO, withdrew the petition he had filed with the Supreme Court in 2013
challenging the antibuggery law. In dropping the suit, the petitioner cited
threats against himself and his family.
…
NGOs continued to report serious human
rights abuses, including assault with deadly weapons, “corrective rape” of
women accused of being lesbians, arbitrary detention, mob attacks, stabbings,
harassment of gay and lesbian patients by hospital and prison staff, and
targeted shootings of such persons. Stigma and intimidation were likely factors
in preventing victims from reporting incidents of discrimination in employment,
occupation, and housing. Although individual police officers expressed sympathy
for the plight of the LGBT community and worked to prevent and resolve
instances of abuse, NGOs reported the police force in general did not recognize
the extent and seriousness of bullying and violence directed against members of
the LGBT community and failed to investigate such incidents.
Prison wardens held male inmates considered
gay in a separate facility for their protection. The method used for
determining their sexual orientation was subjective and not regulated by the
prison system, but inmates reportedly confirmed their sexual orientation for
their own safety. There were reports of violence against gay inmates,
perpetrated by the wardens and by other inmates, but few inmates sought
recourse through the prison system.
J-FLAG, in cooperation with the Ministry of
Health, trained approximately 60 health-care workers to sensitize them to LGBT
patients. Most health-care workers were not familiar with the specific health
concerns and issues of their LGBT patients, resulting in a lack of adequate
care and treatment. Although the country has universal health care, members of
the LGBT community relied mainly on the Jamaica AIDS Support for Life clinic,
claiming that the staff in the government’s health system did not understand
their needs and was unwelcoming. Training programs such as those conducted by
J-FLAG, public advocacy by various NGOs and international donors, and increased
focus by the government on the public health issue of HIV/AIDS increased the
number of LGBT persons accessing the regular public sector health-care
facilities.
[37]
It is easy to see, in light of such evidence,
why the IAD went out of its way to point out that what might have been the most
compelling hardship factor had no evidence to support it. The IAD would not
have sent this message if it didn’t feel that a serious omission had occurred in
this case.
[38]
The Respondent says it cannot be said that the
consultant presented no evidence in relation to the degree of hardship upon
return, and elicited viva voce evidence from the Applicant himself. It
there was viva voce evidence of risk, the IAD failed to deal with it so
that this could well be a reviewable error. However, the IAD itself points to
the real problem. Viva voce evidence is not the same as objective,
authoritative country condition evidence, which is what the IAD said was
missing. No competent counsel would fail to submit the usual reports on Jamaica
in this situation to demonstrate the unchecked, homophobic violence that
prevails there.
[39]
As was pointed out in Chieu,
above, at para 40, the IAD has to look at all of the circumstances in
order to make a decision, and that did not occur in this case because of the
consultant’s failure to submit the usual authoritative reports on the issue of
violence against gay men in Jamaica.
[40]
In these exceptional circumstances, I am willing
to accept that the Applicant’s risk of hardship in Jamaica has not been
assessed because of the consultant’s incompetence that has breached the
Applicant’s right to a fair hearing before the IAD. And given the objective
evidence that was excluded, I think the Decision would have been otherwise had
the procedural fairness not occurred.
B.
Failure to Consider Stay of Removal
[41]
The Applicant’s representative before the IAD
also explicitly requested a stay of removal in written submissions. The
representative provided the rationale for a stay: the need for the passage of
time to demonstrate to the IAD that the Applicant was fully rehabilitated. The
request for a stay was not unfounded or unreasonable because the Applicant’s
treating psychiatrist provided evidence that the Applicant was at a low risk of
re-offending and the IAD itself noted that it was too early to determine if the
Applicant was fully rehabilitated and would able to avoid future criminality.
In fact, the IAD found that the Applicant’s progress towards rehabilitation
weighed in favour of granting a stay, but did not directly explain why a stay
should not be granted in this case.
[42]
As Lewis, above, makes clear, an
appellant is entitled to know why a stay is denied. In the recent case of Li,
above, the Court found that where an applicant explicitly requests a stay of
removal, and if there are facts to support that a stay should be considered,
the applicant is entitled to know why his or her application is dismissed
instead of granting a stay.
[43]
The Respondent concedes that there is no
specific denial of a stay in the Decision but points out that the Officer
refers to the request for stay throughout the Decision and that the denial is
explained in the general conclusion of paragraphs 52 and 53:
[52] The appellant came to Canada through
fraudulent means as a fully formed adult and went on to commit serious offenses
against children. He is in receipt of social assistance, has no apparent job
prospects and I am not satisfied that anyone will suffer any significant
hardship were he removed from Canada. It has not been established that it would
be in the best interests of any child to grant special relief and the evidence
of prospective hardship for the appellant was minimal.
[53] While the appellant has
demonstrated significant progress in terms of his rehabilitation and I accept
that his risk of reoffending is now low, this positive element is insufficient
to overcome the negative aspects of this appeal.
[44]
Justice Mosley dealt with this issue in Rajagopal
v Canada (Public Safety and Emergency Preparedness), 2007 FC 523:
2.
Assessment of Whether to Grant a Stay
[30] According
to the applicant, if the applicant requests a stay as is the case here, the IAD
must consider the request and give “good” reasons as to why it has refused it.
As noted at paragraph 14 of Lewis v. Canada (Minister of Citizenship and
Immigration), [1999] F.C.J. 1227 (T.D.)(QL): “if a stay is requested and if
the facts suggest that there is reason to consider a conditional stay, then, if
reasons are given pursuant to section 69.4(5) of the Act, the applicant is
entitled to know why a stay was denied”.
[31] The applicant asserts that in the
present case the IAD has failed to provide any meaningful analysis or reasons
for its refusal to grant a stay, the extent of its attention being limited to a
sweeping conclusion. As was noted in Archibald v. Canada (Minister of
Citizenship and Immigration), [1995] F.C.J. No. 747 (T.D.)(QL) at paragraph
11: “a significant factor in assessing whether or not to stay the deportation
order is an evaluation of the risk which exists that the applicant will
re-offend”. In the present case, the applicant asserts that the IAD’s sole
finding in this regard was based on its further finding that the applicant was
not remorseful, which was in turn was based on the misconstrued nature of the
police report. Therefore the IAD failed to consider all of the evidence which
indicated that the applicant would likely not re-offend.
[32] The respondent asserts that the
IAD did not err in refusing to grant a stay, and that it gave clear reasons for
the refusal. The respondent asserts that the case law indicates that the
applicant is entitled to know why the IAD denied a stay but that it does not
support the assertion that the IAD must issue additional or special reasons in
this regard.
[33] In dealing with the issue of
whether or not to grant a stay, the IAD stated that “[s]tays of deportation
are, by their very nature, special relief. However, as I have found the overall
humanitarian and compassionate balance to weigh so negative as not to merit
special relief. Special relief is therefore not warranted. It is therefore not
appropriate for me to grant a stay”. The IAD went on to note “[f]or all these
reasons, I find that the case does not merit special relief under sections
67(1)(c) or 68(1)” of the Act.
[34] It is clear that the IAD’s
analysis as a whole was meant to apply to its decisions with respect to both
paragraph 67(1)(c) and subsection 68(1) of the Act. The IAD therefore did not
merely state a conclusion with respect to the stay issue.
[45]
In the present case, it is not clear to me how
the IAD’s analysis as a whole is meant to apply to the request for a stay. In
any event, that analysis is now flawed for the reasons of procedural fairness I
have referred to above, so that this matter must go back for reconsideration.
C.
Unreasonable Assessment of Establishment and
Hardship
[46]
The Applicant has raised unreasonableness as a
further ground of review, but there is no point in my dealing with it because,
on the basis of my conclusions set out above, this matter must be returned for
reconsideration.
D.
Certification
[47]
Counsel concur that there is no question for
certification and I agree.
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