Digests

Eugenio v. Canada (Minister of Citizenship and Immigration)

IMM-5891-02

2003 FC 1192, Kelen J.

15/10/03

13 pp.

Judicial review of decision of Appeal Division of Immigration and Refugee Board (IAD) dismissing appeal from deportation order under former Immigration Act, s. 70(1)(b) since applicant person convicted of criminal offences and described in Act, s. 27(1)(d)--Applicant, Portuguese citizen living in Canada since infancy and becoming permanent resident--No ties to Portugal and immediate family members all living in Canada, including daughter, aged eight-- Convicted of ten criminal offences, including possession of property obtained by crime and sexual assault; becoming subject of immigration report--IAD considered applicable factors in removal hearing but determined sufficient factors against granting appeal, primarily because crimes committed serious and applicant not showing remorse--Whether IAD failing to consider best interest of applicant's daughter in exercising discretion under Act, s. 70(1)(b)--IAD's discretionary jurisdiction legal issue ultimately supervised by courts--IAD's attempts to turn mind to best interests of child neither described as "well identified and defined" nor as showing careful examination as required by case law--Despite principle that Court not to impose formal requirements regarding approach to assessing child's interest, mere mention of children not equivalent of examining and weighing--Best interest of child important factor to be considered in removal cases but not determinative--IAD's failure to make slightest reference in decision to hardship child might face upon father's removal constituting reviewable error of law--Issue involving question of mixed fact and law and decision reviewable on standard of reasonableness simpliciter--IAD failing to consider power under Act, s. 74(2) to stay removal order on condition applicant not re-offend and to lift stay and order applicant deported if applicant failing to comply--IAD's exercise of power may have been appropriate in balancing best interest of child and other factors favouring applicant remaining in Canada against most important factor of whether applicant likely to re-offend--IAD also having power to review case periodically under Act, s. 74(2) if needed-- Application allowed--Immigration Act, R.S.C., 1985, c. I-2, ss. 27(1)(d) (as am. by S.C. 1992, c. 47, s. 78), 70(1)(b) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1995, c. 15, s. 13), 74(2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18).