Date: 19980514
Docket: IMM-2111-97
BETWEEN:
JONATHAN MARC KAPLAN,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
(Delivered orally from the Bench on April 22, 1998, as edited)
MCKEOWN J.
[1] The applicant, a citizen of the United States, born April 15, 1978, seeks judicial review of a decision dated May 7, 1997, of the Adjudication Division of the Immigration and Refugee Board (the "Adjudicator") that the applicant shall be deported from Canada.
[2] The issue, according to the applicant, is whether the Adjudicator should have appointed a guardian under Section 29(4)of the Immigration Act because the applicant could not appreciate the nature of the proceeding. The question is whether the applicant could appreciate the nature of the proceeding.
[3] The applicant submits there was discussion of the applicant's mental condition and designation under Section 29(4) off the record. I am prepared to accept, for purposes of this application, that there was minimal discussion on this subject. However, it is important to determine what could have been discussed.
[4] The duty counsel who represented the applicant stated in his affidavit that he had a difficult interview and he "had a hard time getting clear instructions".
[5] Mr. Wilkinson, the hearing officer on behalf of the Minister, stated at the May 7th inquiry before the Adjudicator: "I didn't have any question about his mental status at any time". He did not recall any discussion about the mental status. Accordingly, in any discussion off the record, there was no basis for the Adjudicator to have any concern about the applicant's ability to understand the inquiry.
[6] The applicant interrupted the Adjudicator many times, but the interruptions were comments which clearly indicated that the applicant knew what was going on, even though the interruptions were totally inappropriate. There was nothing in the applicant's testimony at the hearing to make the Adjudicator believe he was incapable of understanding the nature of the proceeding.
[7] The duty counsel, even subsequent to the hearing, has not testified that he could not obtain instructions. He never raised the subject on the record. The Adjudicator did not err in not forming an opinion under Section 29(4) as there was no reason for her to do so.
[8] The applicant submits he wants a departure order rather than a deportation order. Duty counsel argued in favour of a departure order.
[9] Based on the Adjudicator's sound reasoning for making the deportation order, it is clear that the resulting inquiry would be the same if a representative had been designated. Since I found the Adjudicator did not err in not forming an opinion under Section 29(4), it is not even necessary to make this finding, but because the applicant's submission involves a serious issue, I thought it useful to add this paragraph.
[10] Since there is no breach of natural justice or of a duty of fairness, and there is nothing on the record to indicate that the applicant did not appreciate the nature of the proceeding, it was open to the Adjudicator to make her decision.
[11] The application for judicial review is dismissed.
William P. McKeown
JUDGE
OTTAWA, Ontario
May 14, 1998.