Date: 20021009
Docket: IMM-5519-01
Neutral citation: 2002 FCT 1053
Toronto, Ontario, Wednesday, the 9th day of October, 2002
PRESENT: The Honourable Madam Justice Layden-Stevenson
BETWEEN:
JOSE M. BARREIRA
(a.k.a. JOSE MANUEL BARREIRA)
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the decision of the Immigration Appeal Division of
the Immigration and Refugee Board (the IAD) dated October 11, 2001. The IAD determined that: "the stay of removal is cancelled and that the appeal against the Deportation Order issued on September 22nd, 1995 is dismissed".
[2] The applicant alleges that the IAD breached the principles of natural justice by denying
him an adjournment and proceeding with the oral review of the terms and conditions of the stay, in the absence of counsel, when the record disclosed on its face that the applicant was incapable of representing himself.
[3] The court will not interfere with a discretionary decision of the IAD if the discretion has
been exercised bona fide, is uninfluenced by irrelevant considerations and is not exercised arbitrarily or illegally, even if the court might have decided otherwise.
[4] Despite the articulate and courteous submissions of counsel for the respondent, I have
been persuaded by the submissions of counsel for the applicant that the decision with respect to the adjournment was influenced by irrelevant considerations. Additionally, having carefully reviewed the transcript of the proceedings, I am satisfied that the applicant was prejudiced by not having been granted an adjournment and did not, in the circumstances, obtain a fair hearing. There was, therefore, a breach of natural justice.
[5] For these reasons, the application for judicial review is allowed and the matter is remitted
back for hearing by the IAD before a differently constituted panel.
[6] Counsel posed no question for certification. No question will be certified as this matter
raises no serious question of general importance.
ORDER
IT IS HEREBY ORDERED THAT:
7. The application for judicial review is allowed.
8. The matter is remitted back for hearing by the IAD before a differently constituted panel.
9. No question is certified.
"Carolyn Layden-Stevenson"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5519-01
STYLE OF CAUSE: JOSE M. BARREIRA
(a.k.a. JOSE MANUEL BARREIRA)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: WEDNESDAY, OCTOBER 9, 2002
REASONS FOR ORDER
AND ORDER BY: LAYDEN-STEVENSON J.
DATED: WEDNESDAY, OCTOBER 9, 2002
APPEARANCES: Mr. Bola Adetunji
For the Applicant
Mr. Matthew Oomman
For the Respondent
SOLICITORS OF RECORD:
Mr. Bola Adetunji
Barrister-At-Law
Carlton on the Park
Suite 313-120 Carlton Street
Toronto, Ontario
M5A 4K2
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20021009
Docket: IMM-5519-01
BETWEEN:
JOSE M. BARREIRA
(a.k.a. JOSE MANUEL BARREIRA)
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
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