CITIZENSHIP AND IMMIGRATION
Exclusion and Removal
Removal of Permanent Residents
Applicant citizen of Portugal, Canadian permanent resident —Has lengthy record, including drug-related offences, is drug addict—Convicted of robbery in 1994, ordered deported— Appealed on humanitarian and compassionate grounds, Immigration Appeal Division (IAD) stayed deportation for four years in 1999 so appellant could demonstrate ability to change life for better, failing which would have to suffer serious consequences—But actual order not mentioning four-year term—Upon oral review in May 2000 IAD noted applicant not reporting as required, not in drug addiction therapy yet saw signs of rehabilitation, further stayed execution of removal order, imposed additional reporting requirements—At review that October, IAD still had concerns as to rehabilitation, applicant facing criminal charges—Even so, stay was continued, applicant warned if convicted during stay, Minister of Citizenship and Immigration (CIC) might apply to have stay set aside, execute deportation order—On September 26, 2003, CIC wrote IAD had information of criminal conviction for break and enter, failure to report—On February 9, 2004 IAD sent notice to appear for oral review on June 15, 2004—On June 4, 2004 CIC notified IAD, applicant stay cancelled due to conviction—IAD found applicant was convicted January 29, 2004 of cocaine trafficking, contrary to Controlled Drugs and Substances Act, offence punishable by life imprisonment—Conviction triggered Immigration and Refugee Protection Act (IRPA), s. 197, stay cancelled by operation of law pursuant to IRPA, s. 68(4)—Whether tribunal erred in finding stay condition breached—As matter of jurisdiction legal question, interpretation of former Immigration Act, IRPA at issue, correctness appropriate review standard—Applicant submitting conditions of stay expired before conviction at issue—Examination of three review orders revealing none mentioned four-year period even though at 1999 hearing Board did say order for fixed four-year period—Whether applicant caught by automatic provisions of IRPA, s. 68(4) (if IAD stayed removal order against foreigner, permanent resident found inadmissible for criminality, and person convicted of another offence mentioned in s. 36(1), stay cancelled by operation of law and appeal terminated) or should have hearing on merits—Settled law that stay not automatically expiring, IAD not functus until appeal disposed of—Theobalds v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 117 (T.D.) (QL) explaining that only allowing or dismissing appeal is final disposition thereof and cannot acquire unconditional right to remain in Canada absent Board order—Like any tribunal, IAD speaks by orders, not by reasons, which merely explain how decision reached—So, wrong to suggest (based on four-year reference in reasons), stay had expired, that s. 68(4) inapplicable—Not fixing exact four-year term was benefit to applicant—By notice of June 4, 2004, triggered by break-and-enter conviction, scheduling oral review for June 15, 2004, stay effectively extended to that date—Order not having established fixed term, applicant had to comply with terms of stay until ended and failed to do so—By conviction of offence referred to in s. 36(1), stay cancelled by operation of law under s. 68(4)—To accept applicant’s position would (1) mean reading fixed term into stay when not provided for in order; (2) contradict intent of s. 68(4), that one convicted of a further crime referred to in s. 36(1) has stay terminated; (3) draw distinction between conviction thereafter but before final IAD hearing—IAD correct in holding s. 68(4) applicable herein—No question certified for consideration by F.C.A.— Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 36(1), 68(4), 197—Controlled Drugs and Substances Act, S.C. 1996, c. 19.
Leite v. Canada (Minister of Citizenship and Immigration) (IMM-6850-04, 2005 FC 984, von Finckenstein J., order dated 14/7/05, 20 pp.)