Pacheco v. Canada (Minister of Employment & Immigration)

(1990) D.L.R. (4th) 762

Federal Court of Canada, Court of Appeal, 1990

Subject: Immigration (Approx. 4 pages)

 

1990 CarswellNat 39

11 Imm. L.R. (2d) 28, 71 D.L.R. (4th) 762, 111 N.R. 373, 1990 CarswellNat 39

 

 

Heald, Stone and Desjardins JJ.A.

Heard: June 8, 1990

 

Judgment: June 12, 1990

Docket: Doc. No. A-623-89

 

Counsel: Brenda Wemp, for applicant.

April Burey, for respondent.

 

Aliens, Immigration and Citizenship --- Immigration -- Removal from Canada -- Deportation -- General.

Inquiries -- Adjournment -- Subject of inquiry in advanced stage of pregnancy -- Adjudicator refusing to adjourn inquiry until after birth of child -- Adjudicator failing to exercise discretion -- Deportation order set aside.

 

At her immigration inquiry the applicant, who had entered Canada illegally, was in an advanced stage of pregnancy. Her counsel requested an adjournment as it was clear that the applicant could not travel until after the birth of her child. The adjudicator felt that the decision whether to issue a departure notice or a deportation order was one which had to be made right away. He ordered the applicant deported. She applied to have the order set aside.

 

Held:

 

The application was allowed.

 

The adjudicator was vested with a fairly broad discretion under s. 35(1) of the Immigration Regulations, which provides that the adjudicator presiding at an inquiry could adjourn the inquiry at any time if the adjournment would not impede or unreasonably delay the proceedings. The adjudicator failed to exercise that discretion. By declining to consider the request for an adjournment, he clearly misdirected himself. The deportation order was set aside and the matter was referred back to the adjudicator.

 

Statutes considered:

 

Immigration Act, 1976, S.C. 1976-77, c. 52 [now R.S.C. 1985, c. I-2] --

 

s. 27(2)(f)referred to

 

s. 32(6), as am. S.C. 1987, c. 37, s. 5(2) [now R.S.C. 1985, c. I-2, as am. R.S.C. 1985 (3rd Supp.), c. 30, s. 5(2)]referred to

 

s. 32(7), as am. S.C. 1987, c. 37, s. 5(3) [now R.S.C. 1985, c. I-2, as am. R.S.C. 1985 (3rd Supp.), c. 30, s. 5(3)]referred to

 

 

Regulations considered:

 

 

Immigration Act, 1976, S.C. 1976-77, c. 52 -- Immigration Regulations, 1978,

 

SOR/78-172,

 

s. 35(1), as am. SOR/89-38

 

 

APPLICATION to review and set aside deportation order.

 

 

The judgment of the Court was delivered by Stone J.A.:

 

 

1     The applicant, a citizen of Ecuador, comes before us with leave asking that we review and set aside a deportation order made against her on October 31, 1989, by an immigration adjudicator presiding at an inquiry. She entered Canada illegally from the United States with her boyfriend, concealed in the back of a transport vehicle. At the time of the inquiry, she was some 33-1/2 weeks into pregnancy, the child being expected in November or early December 1989. The case presenting officer recommended that she be issued a departure notice rather than be formally deported.

 

 

2     The applicant testified that her boyfriend was the father of the child, and that his mother and other family members already resided in Canada. Her evidence was also to the effect that he had sought landing pursuant to a minister's permit which was shortly to be issued. The two, apparently, had agreed to be married after he became a permanent resident of this country.

 

 

3     The basis upon which the deportation order was made was that the applicant, not being either a Canadian citizen or a permanent resident, upon entering Canada eluded examination under the Immigration Act, 1976, S.C. 1976- 77, c. 52 (the "Act"), and therefore fell within the description of a person in para. 27(2)(f) of the Act:

 

27(2) Where an immigration officer or a peace officer is in possession of information indicating that a person in Canada, other than a Canadian citizen or a permanent resident, is a person who

 

(f) came into Canada at any place other than a port of entry and failed to report forthwith to an immigration officer or eluded examination or inquiry under this Act or escaped from lawful custody or detention under this Act,

 

 

. . . . .

 

the immigration officer or peace officer shall forward a written report to the Deputy Minister setting out the details of such information unless that person has been arrested without warrant and held in detention pursuant to section 103.

 

 

No question arises as to the correctness of the finding that the applicant is a person so described.

 

 

4     The attacks against the deportation order are that the adjudicator failed to observe a principle of natural justice or that he refused to exercise his jurisdiction, and that he erred in law. These errors are said to arise out of the way in which he arrived at his decision under subs. 32(6) and (7) of the Act:

 

32(6) Where an adjudicator decides that a person who is the subject of an inquiry is a person described in subsection 27(2), the adjudicator shall, subject to subsections (7) and 32.1(4), make a deportation order against that person.

 

(7) Where the person referred to in subsection (6) is a person other than a

person described in paragraph 19(1)(c), (d), (e), (f), (g) or (j) or 27(2)(c), (h) or (i), the adjudicator shall, subject to subsection 32.1(4), issue to that person a departure notice specifying the date on or before which that person is required to leave Canada, if the adjudicator is satisfied that

 

(a) having regard to all the circumstances of the case, a deportation order ought not to be made against that person; and

 

(b) that person will leave Canada or before the date specified in the notice.

 

 

[as am. S.C. 1987, c. 37, subss. 5(2), (3)]

 

 

5     More specifically, it is contended that (a) the adjudicator failed to take into account "all the circumstances of the case" as he was required to do under para. 37(7)(a) and, indeed, that his way of conducting the inquiry actually impeded counsel from calling evidence of a witness as to certain relevant circumstances, and (b) that the adjudicator in deciding whether para. 37(7)(b) would be complied with, ought to have considered a departure date far enough in the future after the child would be born, and that he erred in declining to adjourn the inquiry to a date after the birth would occur.

 

 

6     The basis on which the adjudicator declined to grant an adjournment leads me to think that the deportation order cannot stand. The request for adjournment came about in the course of submissions by counsel for the applicant on the deport/depart question with reference to the requirements of para. 32(7)(b) of the Act. From the fact of the pregnancy, especially the stage thereof, it was clear that the applicant could not travel to her homeland until after the birth of the child. The applicant had testified that she could not say how soon after the child was born she would be able to leave Canada "because I don't know how the baby's health might be."[FN1] The adjudicator was quite properly concerned that issuing a departure notice for her departure on a specified date "the subject of the inquiry will in fact leave."[FN2]

 

 

7     Counsel for the applicant suggested two ways of meeting this concern. The first was for a departure date on a day some months in the future subsequent to the birth of the child. The second was for the adjournment of the inquiry until after the birth had occurred, thereby deferring the deport/depart decision as well. Counsel put this latter submission in the following manner:

 

Another approach you might consider if you don't feel that you can give a date that could be of certainty, I suppose, would be, contrary to your statement that you have to decide today, would be to adjourn it until a date after the

child is born and we would undertake to have a medical report at that time indicating when she would be fit to travel.

 

 

[FN3] The record does, indeed, show that the adjudicator felt compelled "to decide this today"[FN4] or "to make the decision today",[FN5] which is to say, the deport/depart decision. It is also manifest that he declined to grant an adjournment for that reason.

 

 

8     The adjudicator was vested with a fairly broad discretion under the provisions of s. 35(1) of the Immigration Regulations, 1978, SOR/78-172, as amended SOR 89-38:

 

35.(1) The adjudicator presiding at an inquiry may adjourn the inquiry at any time if the adjournment will not impede or unreasonably delay the proceedings.

 

 

It is not so much that he exercised this discretion and did so improperly, but that he failed to exercise it at all. Nothing in the Act, or in the circumstances, required him to make the deport/depart decision that very day. It was open to him to adjourn the inquiry, and by declining to consider the request, he clearly misdirected himself. In my opinion, the adjudicator was bound to consider the request for adjournment and to dispose of it properly, one way or the other, within the discretion vested in him. That, he failed to do.

 

 

9     I would set aside the deportation order and refer the matter back to an adjudicator for redetermination in accordance with subss. 32(6) and (7) of the Immigration Act, 1976, and on a basis not inconsistent with these reasons for judgment.

 

Appeal allowed.

 

 

NOTES

 

FN1. Transcript, p. 17, lines 42-43.

 

FN2. Ibid., p. 26, line 17.

 

FN3. Ibid., p. 27, lines 31-36.

 

FN4. Ibid., p. 26, lines 49-50.

 

FN5. Ibid., p. 28, lines 49-50.