Ewere v. Canada (Minister of Citizenship and Immigration), docket IMM-2120-96

Date: 19971212

Docket: IMM-2120-96

BETWEEN:

     HENRY OSARO EWERE

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

     (Delivered from the Bench at Toronto, Ontario

     on Thursday December 11, 1997, as edited.)

ROTHSTEIN, J.:

[1]      Ms. Tinkler, you have made a valiant effort in attempting to convince me that the judicial review should be allowed; however, I am unable to agree. The Appeal Division cited the Ribic¹ test which provides some guidelines for its exercise of discretion in cases under section 70 of the Immigration Act and it applied them to the facts. Your argument goes to whether the Appeal Division properly weighed the evidence and that is not a matter for the Court on judicial review.

[2]      With regard to the argument about competence of previous counsel, you have referred to lack of preparation, the absence of rehabilitation reports, and the wife of the applicant only being called as a witness at the last minute without adequate preparation. Indeed these may be arguments that are relevant in proceedings against previous counsel by the applicant in other forums. However, the evidence here is not sufficient to demonstrate, and you do not suggest, that it should have been obvious to the Appeal Division that the applicant was being denied fairness by the proceedings continuing. As the jurisprudence which you cited indicates (e.g. Drummond v. M.C.I., Court File A-771-92, April 11, 1996), the standard to be met to prove a breach of procedural fairness principles is an onerous one when the issue is incompetence of counsel and it has not been met in this case.

[3]      The judicial review is dismissed.

"Marshall E. Rothstein"

Judge

Toronto, Ontario

December 12, 1997

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

DOCKET:                      IMM-2120-96

STYLE OF CAUSE:              HENRY OSARO EWERE

                         - and -

                         THE MINISTER OF CITIZENSHIP

                         AND IMMIGRATION

DATE OF HEARING:              DECEMBER 11, 1997

PLACE OF HEARING:              TORONTO, ONTARIO

REASONS FOR ORDER BY:          ROTHSTEIN, J.

DATED:                      DECEMBER 12, 1997

APPEARANCES:                 

                         Ms. Arlene Tinkler

                            

                             For the Applicant

                         Mr. Stephen H. Gold

                             For the Respondent

SOLICITORS OF RECORD:         

                         Ms. Arlene Tinkler

                         Barrister & Solicitor

                         Suite 2000, 393 University Avenue

                         Toronto, Ontario

                         M5G 1E6

                             For the Applicant

                         George Thomson

                         Deputy Attorney General

                         of Canada

                             For the Respondent

---

                          FEDERAL COURT OF CANADA

Date: 19971212

Docket: IMM-2120-96

                         BETWEEN:

                         HENRY OSARO EWERE

     Applicant

                         - and -

                         THE MINISTER OF CITIZENSHIP

                         AND IMMIGRATION

     Respondent

                        

            

                         REASONS FOR ORDER

                        

__________________

     ¹ Ribic, Marida, v. M.E.I. (I.A.B. T84-9623), D. Davey, Benedetti, Petryshyn, August.20, 1985