Nagularajah v. Canada ( Minister of Citizenship and Immigration )
IMM-3732-98
Sharlow J.
7/7/99
9 pp.
Application for judicial review challenging IRB Appeal Division decision refusing to stay deportation order-Applicant convicted of three criminal offences-Deportation order issued after Immigration Act, s. 27 inquiry-Appeal to IRB Appeal Division based on Act, s. 70(3)(b) invoking existence of compassionate or humanitarian considerations-Record indicating since release from incarceration, applicant has not exhibited dangerous behaviour while on medication for his mental illness-Application dismissed-Appeal Division gave careful and thorough consideration of nature and cause of applicant's criminal behaviour, control thereof after release and various factors relevant to prospects of control of behaviour in future-All factual conclusions supported by evidence-Difference between appeal brought under Act, s. 70(1)(b) (where Appeal Division required to consider all circumstances of case) and Act, s. 70(3)(b) (humanitarian and compassionate considerations)-Whatever difference between phrase "all the circumstances of the case" and phrase "humanitarian and compassionate considerations" both broad enough to include evidence of criminal history, rehabilitation and future prospects, including risk of future danger to public-Even though Barrera v. Canada (Minister of Employment and Immigration), [1993] 2 F.C. 3 (C.A.) and Canada (Minister of Citizenship and Immigration) v. Mansoobi, [1997] F.C.J. No. 353 (T.D.) (QL) may be distinguished from present case on basis applicant's criminal behaviour caused by mental illness and make applicant more worthy of sympathetic consideration, that does not detract from conclusion Appeal Division entitled to consider question of public safety in appeal under Act, s. 70(3)(b)-No basis to argument proper procedure in case of concern about public safety to invoke Act, s. 70(5) as public safety may very well be considered under other provisions, including Act, s. 70(3)(b)-Applicant had ample opportunity to present evidence relating to question of public risk, and took opportunity-Question certified: Did IRB Appeal Division exceed jurisdiction when it considered public safety in appeal of deportation order under Immigration Act, s. 70(3)(b)?-Immigration Act, R.S.C, 1985, c. I-2, s. 70(1)(b), (3)(b) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13), (5) (as am. idem).