Category: Appeals of Deporation Orders to IAD

The issue of the exercise of discretion with respect to the residency requirement is not one which has received much attention. This indeed is the first case I am aware of where the court has done a detailed analysis of the factors. It is also noteworthy for its careful application of Khosa to the question of the standard of review. .

The Court held that in the circumstances of the case incompetent counsel was a breach of natural justice.

The Court held that the appeal division did not err when it considered the fact the appellant was a member of a gang when exercising its discretion and when it considered the fact that the appellant's presence in Canada posed a secondary risk to his close family.

The Court found an inference of the Appeal Division unreasonable and set aside the decision noting:[18] The Panel found the Applicant not to be credible only with respect to two aspects of his testimony. It did not believe the Applicant when he testified that the form was completed by the wife of a co-worker and that he signed and mailed it without reading it. [19] The Panel found no other aspect of the Applicant’s testimony not to be credible. In fact, his testimony in all other respects appears to have been fully accepted by the Panel. Much of it was corroborated by his aunt, the only other witness at the hearing. The evidence of a witness is presumed to be truthful, unless there exists a valid reason to doubt it: Maldonado v, Canada (Minister of Employment and Immigration) (1979), 31 N.R. 34 (F.C.A.). One must ask what reasons the Panel offers to doubt the Applicant’s evidence that the form was prepared by someone other than himself.

The Court held that the Immigration Appeal Division erred in taking into evidence the applicant's record under the Youth Criminal Justice Act without first determining whether it was legally releasable under the Act.