A Guyanese man deported from Canada late last year may have an opportunity to be returned to that country after a judge upheld an order granting him a rehearing of the matter.
Javed Aziz, 21, was deported to Guyana last year even as a judicial review of an Immigration Appeal Division (IAD) was pending.
Aziz was born in Guyana and became a resident of Canada in October 1997 after his father sponsored his family. He was eight years-old at the time and his father abandoned his family shortly after they had arrived.
Aziz was ordered deported after a member of the Immigration Division found him inadmissible under paragraph 361(a) of the Immigration and Refugee Protection Act. Court documents did not specify the circumstances of his inadmissibility.
He appealed the IAD decision to deport him and this was dismissed. He then sought leave to apply for judicial review of the IAD decision but was deported before the review was heard on December 8, 2010. The hearing of his application for judicial review resulted in an order of the Federal Court on December 22, 2010 quashing the IAD decision and requiring the deportation appeal to be reconsidered by a differently constituted tribunal. The Minister of Citizenship and Immigration appealed the Federal Court order and sought a stay of the decision pending the disposing of the appeal. Judge J.A Sharlow, in the Federal Appeal Court, dismissed the motion for a stay.
According to Judge Sharlow, in a decision seen by this newspaper, the principal concern of the Minister in the application for a stay was that the order by the Federal Court Judge could be interpreted as an order requiring the Minister to return Aziz to Canada forthwith. “I do not read the order that way. Counsel for Mr Aziz conceded, and I agree, that the order does nothing except set aside the decision of the IAD and require a rehearing. Although the judge stated that as a result of his order Mr Aziz would be returned to Canada, that statement appears only in the endorsement and not in the order,” Justice Sharlow said.
Justice Sharlow said it was simply just the judge’s understanding of the meaning of Section 52 of the Immigration and Refugee Protection Act. He said he was not required to express his opinion on whether the section requires that Aziz be returned to Canada for the new hearing. Justice Sharlow in the ruling said the Federal Court judge may have breached a rule of procedural fairness because he did not have the benefit of submissions from the Minister when he interpreted Section 52 as he did, or when he concluded as he did that the IAD was obliged to put its mind to the question of whether to stay the deportation with conditions.
But Justice Sharlow was not persuaded that such an error, if it occurred, would have deprived the judge of his jurisdiction to set aside the decision of the IAD and to order a rehearing.
Justice Sharlow dismissed the Ministry’s motion for a stay but said it is without prejudice to the right of the Minister to present a motion in the Federal Court for appropriate relief and, depending upon the outcome of that motion, to submit a new motion for a stay in the Appeal Court if circumstances warrant.
