Date: 19990914
Docket: IMM-2715-99
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
CARLOS ALBERTO PEREIRA DA SILVA
Respondent
REASONS FOR ORDER
REED, J.:
[1] The Minister of Citizenship and Immigration appeals a decision of an Adjudicator, dated May 14, 1999, which decision adjourned the respondent's deportation inquiry pending the outcome of his appeal to the British Columbia Court of Appeal, of the convictions that are the underpinning of the deportation inquiry.
[2] The circumstances surrounding the decision to adjourn the inquiry are as follows. On October 18, 1996, the respondent was convicted of having broken into and entered his wife's apartment, on June 23, 1995, with the intention to commit an indictable offence. He was also convicted of having committed, on June 30, 1995, the offence of aggravated assault when he stabbed his wife at her workplace. A report under paragraph 27(1)(d) of the Immigration Act was prepared on September 19, 1997, and a Direction for an Inquiry, pursuant to subsection 27(3) of the Act, issued on September 19, 1999..
[3] On February 17, 1998, the inquiry was opened by adjudicator Mackie. Counsel for the respondent requested an adjournment of that inquiry pending the outcome of the respondent's appeal of his convictions; those appeals had been commenced the previous fall. Counsel for the Minister consented to the adjournment request. It appears from the record of the February 17, 1998 proceeding that both counsel were concerned because the Immigration Act no longer contained provisions allowing an inquiry to be reopened. Thus, it was felt that the respondent would be severely prejudiced if the inquiry proceeded and the appeals were successful.
[4] In April 1998, the Minister sought a resumption of the inquiry on the ground that the respondent had not appealed all his convictions. This was refused when it was shown that the Minister was in error. On January 19, 1999, a second attempt was made by the Minister to have the inquiry resumed. The Minister took the position that the respondent's appeals of his convictions were not proceeding in a timely manner. Adjudicator Mackie refused that request, stating that the appeals were, in fact, proceeding. She noted that legal aid had been granted and that it had been known, at the time the adjournment was agreed to the previous February, that the appeals would take some time.
[5] On February 4, 1999, the Minister moved to withdraw the September 17, 1997 Direction for an Inquiry that was before adjudicator Mackie; the request was granted on February 12, 1999. On April 12, 1999, new reports pursuant to paragraph 27(1)(d) of the Act were filed, and Directions for Inquiry pursuant to subsection 27(3) in relation thereto issued on the same day. While the Minister refers to the reports as "new", they relate to the convictions arising out of the events of June 23 and 30, 1995, described above. Thus, they are for all practical purposes, in substance, the same as those that were the subject of the September 19, 1997 Direction for Inquiry.
[6] On May 14, 1999, an inquiry pursuant to the April 12, 1999, Directions for Inquiry was opened by adjudicator Shaw-Dyck. Counsel for the respondent's first submission was that the inquiry should be adjourned. Adjudicator Shaw-Dyck granted that request. It is that decision, that is the subject of the present review.
[7] In granting the adjournment request, adjudicator Shaw-Dyck referred to the events surrounding the earlier proceeding, stating that the withdrawal of the September 19, 1997 Direction for Inquiry and the filing of those presently before her was the "using [of] a procedural technicality to overcome a decision that the Department of Immigration does not like. [i.e., the decision by adjudicator Mackie on January 19, 1999]" Adjudicator Shaw-Dyck commented that the procedure that had been adopted by the Department placed the person concerned "at a tremendous disadvantage", and she did not believe that such an approach was in keeping with the principles of natural justice or fairness. The adjudicator concluded that it would not be appropriate for her to ignore the earlier proceeding and she would take into account the decisions to adjourn that had been made earlier.
[8] The adjudicator did not misinterpret the applicable law. She commented that an adjudicator was not obliged to adjourn an inquiry but had the discretion to do so. She referred to the decision in Prassad v. Minister of Employment and Immigration (1989), 7 Imm.L.R. (2d) 253 (S.C.C.). She stated that "[an] adjudicator must be cognizant that a full and proper inquiry be held", and must "ensure that the statutory duty to hold an inquiry is fulfilled." She quoted from a commentator: "[a]bove all there is a need to proceed expeditiously, and adjournments should not be viewed as a method to indefinitely delay the inquiry".
[9] The adjudicator commented that, at the time the first inquiry was adjourned, it was known that the appeals would take some time, that it had not been established that the respondent had been deliberately dilatory in pursuing the appeals of his convictions, and that the Supreme Court of British Columbia had been unable to conclude that the appeals were without merit. She concluded "... it has not been established to my satisfaction that Mr. Da Silva has not been actively pursuing his appeal ...".
[10] The adjudicator referred to the principles enunciated in Tam v. Minster of Employment and Immigration, [1983] 2 F.C. 31 (F.C.A.), and adjourned the inquiry. The Tam decision dealt with a situation in which an inquiry had been adjourned to allow an individual to apply for a Minister's permit, and the Minister sought to resume the inquiry before answering the applicant's request for a permit. I understand the adjudicator's reference to the Tam decision stems from the fact that in the present case the Minister had initially agreed to postpone the respondent's inquiry to await the disposition of respondent's appeals of his convictions, but then sought to resume the inquiry before that event occurred. The adjudicator concluded that the Minister should not be allowed to resile from the commitment that had been made earlier without a good reason for doing so.
[11] I indicated, on the hearing of the Minister's application for judicial review, that I had not been persuaded that the adjudicator lacked authority to grant an adjournment. Counsel for the Minister had argued that such authority did not exist. It is clear from the Prassad decision that discretion to adjourn exists. I also indicated that I had not been persuaded that the adjudicator had fettered her decision in referring to the earlier proceedings. It is clear that she took those proceedings into account, but then proceeded to make her own decision on the basis of all the facts that were before her, including the progress of Mr. Da Silva's appeals up to that point. The earlier proceeding is not an irrelevant consideration, and the adjudicator did not use it as a restriction on her ability to consider all the facts. I note as well, that it is not the role of a judge on judicial review to substitute his or her view of the factual conclusion that should be drawn from the one reached by the decision-maker. I cannot conclude that the adjudicator ignored evidence before her.
[12] It being obvious that I did not think that the adjudicator's decision was one that could be set aside on judicial review, counsel for the Minister sought an opportunity to frame questions for certification before a final decision was made. These were received by the Court on September 7, 1999, together with counsel for the respondent's comments thereon. Reply submissions were subsequently received from counsel for the Minister on September 9, 1999.
[13] The questions that are proposed are:
| 1. During the course of a deportation inquiry, is an adjudicator required to consider existing criminal convictions, which form the basis of the allegations against the subject, or can the adjudicator adjourn the inquiry because the subject has appealed his or her criminal convictions? If an adjudicator has discretion to adjourn in these circumstances, did the adjudicator fail to proceed expeditiously, as required in s. 80.1(4) of the Immigration Act, by adjourning the inquiry for an indefinite period of time? |
| 2. Is it within the discretion of the adjudicator to adjourn an inquiry and cause an indefinite [or an unknown] delay in the proceedings to allow the subject to obtain evidence that does not exist at the time of the request for an adjournment? |
| 3. Is it within the discretion of an adjudicator to adjourn a deportation inquiry to allow the subject to commence a proceeding which is unrelated to the full and proper conduct of the inquiry? |
| 4. During the course of a deportation inquiry, is an adjudicator required to consider the existing criminal convictions, which form the basis of the allegations against the subject, or can the adjudicator adjourn the inquiry because the subject has appealed his or her criminal convictions? If an adjudicator has discretion to adjourn in these circumstances, did the adjudicator improperly exercise that discretion by showing undue deference to the decision or another adjudicator and not taking into consideration all of the evidence before him or her? |
[14] There are a number of difficulties with these questions. The first question in paragraph 1 is not clear. The situation described is not an "either/or" situation. The adjudicator may adjourn an inquiry, as noted by the Supreme Court in Prassad, and in doing so may "consider [the] existing criminal convictions", particularly, if the appeal of those convictions is the ground of the adjournment request. With respect to the second question in paragraph 1, the adjudicator did not grant an adjournment for an indefinite period of time. She granted an adjournment "pending the outcome of the appeal of Mr. Da Silva's convictions". (The respondent's evidence is that a hearing is scheduled for December 9, 1999.) An indefinite adjournment is one where there is no date or event that defines its length. An adjournment sine die is of this type. The adjournment given by the adjudicator has a definite duration, even though the exact date of the recommencement of the inquiry is not known.
[15] In her reply submissions, counsel for the Minister treated the second question in paragraph 1 as though it described the adjournment as one for an "indeterminate" period of time. This is a different question from that originally posed but it is correct that the adjournment is of indeterminate length. The inquiry has not been adjourned to a specific date. However, no arguments were made on the hearing of the judicial review that an adjudicator, when granting an adjournment, must identify a specific date on which the adjournment will terminate, and I can think of no reason why this is a requirement. The Minister's concern is with the merits of this adjudicator's decision. Counsel argues, in her reply submissions on the certification of questions, that the adjudicator had evidence before her that showed there had been dilatoriness in proceeding with the appeals. The adjudicator came to a different conclusion. A difference of opinion of this nature does not give rise to a question of general importance for certification.
[16] I do not understand the question that is posed in paragraph 2. Again, the adjournment was not for an indefinite period. If the portent of the question is to ask whether an adjudicator can adjourn an inquiry pending the appeal of a criminal conviction, the conviction being the underpinning of the proceeding before the adjudicator, the answer is clearly yes. The adjudicator's discretion to adjourn is not circumscribed so that it includes all relevant circumstances except the appeal of the convictions that underlie the deportation proceeding. Also, on the facts of this case, it was not merely the respondent's appeal of his criminal convictions that motivated the adjudicator's decision. That decision was based on a conclusion that the Minister should not be allowed to resile from the earlier commitment to await the outcome of the appeals, without a good reason for doing so. The adjudicator was also obviously irritated at what she considered to be an inappropriate procedural manoeuvre. Thus, an answer to the question in paragraph 2 could not be dispositive of the application for judicial review and that alone would require that it not be certified.
[17] With respect to the question set out in paragraph 3, the answer is irrelevant to the decision under review since the inquiry was not adjourned to allow the respondent to commence any proceeding. The appeals had been commenced long before the inquiry of April-May 1999. Also, the appeal proceedings are not unrelated to the inquiry. As noted above, it is the convictions that underpin the deportation inquiry.
[18] In her reply submissions, counsel for the Minister stated that the word "commence" in question 3 should be changed to "continue", and the word "unrelated" should be replaced with the words "outside the scope of the inquiry". In my view, it is highly inappropriate to change the wording of a proposed question, in reply submissions, when opposing counsel's opportunity to comment on the question has passed. In any event, the replacing of the word "commence" with "continue" does not improve the question. The adjournment was not granted to allow the respondent to "continue" the appeal. Presumably, the appeal will continue whether or not the inquiry remains adjourned. The adjournment was granted to await the outcome of the appeal.
[19] Counsel for the Minister's submissions that the adjudicator lacks jurisdiction to await the outcome of a proceeding that is outside the scope of the inquiry, is based on the decision in Green v. M.E.I. (1983), 49 N.R. 225 (F.C.A.). In that decision a humanitarian and compassionate application was held to be outside the scope of an inquiry, and an adjudicator was held not to be required to await the outcome of that application. That decision does not speak to the present situation. It is not contested that the adjudicator was not required in the present case to grant an adjournment. Also, the appeal of the criminal convictions is much more closely linked to the inquiry proceeding, than is a humanitarian and compassionate application. Lastly, as noted above, the adjudicator's main reason for granting the adjournment was because the Minister had agreed to an adjournment, then resiled from that commitment, without in the adjudicator's view having a good reason to do so. I should note, on this topic, that when I asked counsel for the Minister, at the hearing, whether, if the outcome of the appeals was expected within a few days of the commencement of the inquiry, or within a few weeks or a month or two, would she continue to take the position that the adjudicator had no jurisdiction to adjourn the inquiry to await that outcome. She was not as firm in her assertion that no jurisdiction existed as she had been where the prospective length of the adjournment would be longer. This demonstrates that the Minister's concern is with an adjudicator's decision particular to the facts of this case, not with a question of general importance.
[20] The first question set out in paragraph 4, repeats that asked in paragraph 1, and for the reason already given is not an appropriate question for certification. The second question is a request for a rehearing of the judicial review. It is not a question of general importance; it is not a question of broad significance that transcends the interest of the parties to the present proceeding.
[21] I have not been persuaded that any of the questions pose a question of general importance and therefore decline to certify them. For the reasons given, this application for judicial review will be dismissed.
Judge
OTTAWA, ONTARIO
September 14, 1999
Email this Content