Canada ( Minister of Citizenship and Immigration ) v. Da Silva
IMM-2715-99
Reed J.
14/9/99
10 pp.
Judicial review of Adjudicator's decision adjourning respondent's deportation inquiry pending outcome of appeal to British Columbia Court of Appeal of convictions underpinning deportation inquiry-Respondent convicted of break and enter with intention to commit indictable offence, aggravated assault-Direction for inquiry issued-On February 17, 1998 inquiry opened, adjourned pending appeal of convictions on consent by Adjudicator Mackie-On second attempt to have inquiry resumed, Minister submitting appeals of convictions not proceeding in timely manner-Adjudicator Mackie refusing request on ground appeals in fact proceeding-Minister subsequently withdrawing direction for inquiry, issuing new directions for inquiry relating to same convictions-When this inquiry opened, Adjudicator Shaw-Dyck granting adjournment, stating withdrawal of first direction for inquiry, filing second direction for inquiry, using procedural technicality to overcome unfavourable decision-Commenting procedure adopted by Department putting respondent at tremendous disadvantage, contrary to principles of natural justice, fairness-Concluded would take into account previous decisions to adjourn-Adjudicator commented having discretion to adjourn; not established respondent deliberately dilatory in pursuing appeals of convictions; concluded Minister should not be allowed to resile from earlier commitment (agreeing to postponement) without good reason for doing so-Application dismissed-Adjudicator having discretion to adjourn: Prassad v. Minister of Employment and Immigration, [1989] 1 S.C.R. 560-Adjudicator not fettering decision by referring by earlier proceedings-While considered those proceedings, Adjudicator proceeded to make own decision-Earlier proceeding not irrelevant consideration-Minister submitting questions for certification, respondent commenting thereon-As to question whether adjudicator having discretion to adjourn inquiry, cause indefinite delay to allow subject to obtain evidence not existing at time of request for adjournment, on facts herein, not merely respondent's appeal of criminal convictions motivating Adjudicator's decision-That decision based on conclusion Minister should not be allowed to resile from earlier commitment to await outcome of appeals, without good reason for doing so-Adjudicator also irritated at what considered to be inappropriate procedural manoeuvre-As to question whether within Adjudicator's discretion to adjourn deportation inquiry to allow subject to commence proceeding unrelated to full, proper conduct of inquiry, Minister proposing changing "commence" to "continue", "unrelated" to "outside scope of inquiry" in reply submissions-Highly inappropriate to change wording of proposed question, in reply submissions, when opposing counsel's opportunity to comment on question passed-Replacing "commence" with "continue" not improving question-Adjournment not granted to allow respondent to "continue" appeal-Presumably appeal will continue whether or not inquiry remaining adjourned-Adjournment granted to await outcome of appeal-Minister's submissions adjudicator lacking jurisdiction to await outcome of proceeding outside scope of inquiry based on Green v. Minister of Employment and Immigration, [1984] 1 F.C. 441 (C.A.)-Appeal of criminal convictions much more closely linked to inquiry proceeding than is humanitarian, compassionate application-Adjudicator's main reason for granting adjournment because Minister agreed to adjournment, then resiled from commitment without, in Adjudicator's view, having good reason to do so-As not posing question of general importance, none of proposed questions certified.