Date: 20020620
Docket: IMM-1828-99
Neutral citation: 2002 FCT 694
BETWEEN:
MAHMOUD ES-SAYY JABALLAH
HUSNAH MOHAMMAD AL-MASHTOULI
AHMAD MAHMOUD JABALLAH
ASH-SHAYMAA ES-SAYYID
AL-MUNZIR ES-SAYYID
AFNAN MAHMOUD ES-SAYYID
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] On September 28, 2000, Justice Hansen allowed an application for judicial review brought by the applicants against a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") which had found Mr. Jaballah, his wife and children not to be Convention refugees. Justice Hansen did so as she found that in the absence of consent by the applicants, a single member of the CRDD lacked jurisdiction to have dealt with their claims. In the result, Justice Hansen ordered that the claims of the Jaballah family to status as Convention refugees be remitted back to the CRDD for rehearing by a differently constituted panel.
[2] While in the applicants' further memorandum of argument before Justice Hansen an order was sought directing that the CRDD declare the applicants to be Convention refugees, this relief was not granted.
[3] Now, in June of 2002, Mr. Jaballah and his family complain that the CRDD has not yet conducted the rehearing ordered by the Court in September, 2000. In the result, they move on notice of motion in the proceeding in which they sought and obtained judicial review of the initial decision of the CRDD, seeking the following relief:
a) that the Minister of Citizenship and Immigration, together with three members of the CRDD, a Minister's representative before the CRDD, and an Immigration and Refugee Board case officer be ordered to attend to show cause why they should not be held in contempt of court;
b) a declaration that the applicants are Convention refugees; or in the alternative,
c) an order directed to the CRDD that the applicants be found to be Convention refugees.
[4] At the start of the oral argument, counsel for the applicants advised that he was not proceeding with respect to the claim of contempt of court, or with respect to the claim for declaratory relief. What was sought was an order directed to the CRDD that the applicants be found to be Convention refugees.
[5] In support of the motion, the applicants rely upon the affidavit of Sarah Namer, the record in this proceeding and the findings of fact made by Justice Cullen in reasons for judgment delivered in November, 1999 in proceedings brought to determine whether a certificate filed by the Minister of Citizenship and Immigration and the Solicitor General under section 40.1 of the Immigration Act, R.S.C. 1985, c. I-2 ("Act") was reasonable. Those reasons are reported at Canada (Minister of Citizenship and Immigration) v. Jaballah, [1999] F.C.J. No. 1681 (T.D.).
[6] The nub of the argument advanced by the applicants is that the failure to bring the claim to Convention refugee status on for hearing before now is an abuse of process and a violation of rights guaranteed by sections 7 and 15 of the Canadian Charter of Rights and Freedoms. It is argued that on the coming into force of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 on June 28, 2002, the applicants will be severely prejudiced and irreparably harmed. This is said to found jurisdiction in the Court to grant the extraordinary relief of ordering the CRDD to find the applicants to be Convention refugees.
[7] I am not satisfied that such jurisdiction exists on an interlocutory motion. In this regard it might be argued that the distinction between, on the one hand, declaring the applicants to be Convention refugees, and on the other hand, ordering the CRDD to so find, is a distinction without a difference. The applicants did not proceed with their claim to declaratory relief for good reason, in my view, in that the long-standing jurisprudence of this Court is to the effect that declaratory relief is not available on motion on an interlocutory or interim basis. See, for example, Francis v. Mohawks of Akwesasne (Band of Indians) (1993), 62 F.T.R. 314 (T.D.); Arctic Offshore Marine Services Ltd. v. Canada (1986), 4 F.T.R. 183 (T.D.). In view of this case law, I have doubts as to the availability on motion of an order directing the CRDD to find the applicants to be Convention refugees.
[8] However, assuming, without deciding, that such jurisdiction exists, I am satisfied that this is not a proper case for the exercise of such discretion for the following reason.
[9] The slim evidence before me does not support the making of a conclusion as to whether the applicants are, or are not, Convention refugees. There is no affidavit filed by any applicant swearing to relevant facts. The one affidavit filed on the applicants' behalf is sworn by an individual who in oral argument was described as the applicants' counsel's assistant who swore the affidavit on the basis of advice from counsel. The affidavit is silent as to the treatment directed to the applicants in Egypt.
[10] Reliance was placed upon the findings of Justice Cullen in his previously cited reasons where he stated, at paragraph 122, that he accepted the evidence of Mr. and Mrs. Jaballah that they were persecuted in Egypt. However, Justice Cullen also took great care to set forth the nature of the decision he was there required to make. Justice Cullen wrote at paragraphs 6 and 7:
Very early in these proceedings (June 8/99) I suggested to counsel for the respondent that he explain to his client the role of the designated judge. At page 9, Vol. 2, of the transcript I stated:
Mr. Rodrigues, I want to check whether you have explained to the witness the role that I am playing here. In other words, he is not on trial before me. I have to determine whether the people who signed the certificate had adequate or an appropriate amount of evidence to make that decision. If anybody is on trial, it is the people who signed the certificate.
Given the number of cases that have decided or touched on the role of the designated judge, it seems unlikely that the role could be misconstrued. Counsel for the applicant began his argument on this note and quoted several cases that leave no room for doubt on this subject. So there can be no doubt where I stand on this matter, I will immodestly quote from my decision in the case of Saygili v. Canada (Minister of Citizenship and Immigration) (1997), 127 F.T.R. 112, at p.114:
My task is not to substitute my decision for that of the two Ministers, but rather to decide whether the Certificate filed by the Ministers is reasonable on the basis of the evidence and information available to them, and to me.
And further, from my colleague, McGillis, J. in Ahani v. Canada (1995), 100 F.T.R. 261, at p.268:
The proceedings under section 40.1 of the Immigration Act are directed solely and exclusively to determining the reasonableness of the ministerial certificate identifying the normal person as a member of certain inadmissible classes of persons.
This approach was supported by my colleague Denault, J., in Farahi-Mahdavieh, (1993), 63 F.T.R. 120 (T.D.).
[11] Thus, the observation of Justice Cullen as to persecution, as a matter of law, does not equate to a finding that the applicants are Convention refugees. That was an issue Justice Cullen did not consider. His decision went only to the reasonableness of the section 40.1 certificate before him.
[12] The absence of evidence therefore makes it impossible to grant the relief sought.
[13] Moreover, the evidence has not satisfied me that the failure of the CRDD to have reheard the matter is either an abuse of process or a breach of any right guaranteed by the Charter.
[14] The evidence is to the effect that the matter has been set for hearing a number of times, on May 14, 2001, August 16, 2001 and December 4, 2001, but adjourned. The matter is now set for hearing on June 26, 2002. With the benefit of hindsight, the significance of those prior adjournments has been enhanced by the coming into force of the Immigration and Refugee Protection Act. However, that new legislation does not by itself lead to the conclusion that prior adjournments were sought and obtained for a sinister purpose. There is no evidence before me, and it has not been suggested, that before bringing this motion the applicants either requested that their matter be set for hearing or otherwise took steps to challenge or review any decision to adjourn the proceedings. As counsel for the applicants noted in oral argument, sometime in the year 2002 the Bar woke up to the new legislation and counsel concluded that his clients "were in a mess". This does not support a conclusion of abuse of process or a Charter breach.
[15] For these reasons, the motion will be dismissed.
[16] This is not to say that the applicants are left without recourse to potential remedies. Their counsel confirmed that any concerns caused by the new legislation would be addressed if the CRDD reached a decision before June 28, 2002. Given sufficiently compelling evidence it would be within the jurisdiction of the CRDD to reach a decision before June 28, 2002. Failing that, if the CRDD were to decide that the applicants were Convention refugees, and if the current section 40.1 certificate is confirmed, and if the result of that and the new legislation is to deprive the applicants of a right protected by the Charter as was asserted before me, that may well be the subject of future challenge on a proper evidentiary record.
[17] Turning to the issue of costs, while the Immigration and Refugee Board did not seek its costs, the applicants and the respondents to the motion each sought costs on a solicitor-and-client basis against the other. In all of the circumstances, I have not been satisfied that special reasons exist for the award of costs. Each party shall therefore bear its own costs.
[18] Counsel requested the opportunity to make submissions as to the certification of a question after release of these reasons. Accordingly, each party before me may make written submissions as to the issue of certification by serving and filing with the Court correspondence within seven days of receipt of these reasons. Each party will have the further period of three days in which to serve and file reply submissions following which an order will issue dismissing the motion.
"Eleanor R. Dawson"
Judge
Toronto, Canada
June 20, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-1828-99
STYLE OF CAUSE: MAHMOUD ES-SAYY JABALLAH, HUSNAH MOHAMMAD AL-MASHTOULI, AHMAD MAHMOUD JABALLAH, ASH-SHAYMAA ES-SAYYID, AL-MUNZIR ES-SAYYID, AFNAN MAHMOUD ES-SAYYID
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MONDAY, JUNE 17, 2002
REASONS FOR ORDER BY: DAWSON J.
DATED: THURSDAY, JUNE 20, 2002
APPEARANCES BY: Mr. Rocco Galati
For the Applicants
Mr. David Tyndale
For the Respondent
Mr. Micheal Crane
For the Immigration and Refugee Board
Page: 2
SOLICITORS OF RECORD: Galati, Rodrigues, Azevedo & Associates
Barrister and Solicitor
203-637 College Street
Toronto, Ontario
M6G 1B5
For the Applicants
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020620
Docket: IMM-1828-99
BETWEEN:
MAHMOUD ES-SAYY JABALLAH, HUSNAH MOHAMMAD AL-MASHTOULI, AHMAD MAHMOUD JABALLAH, ASH-SHAYMAA ES-SAYYID, AL-MUNZIR ES-SAYYID, AFNAN MAHMOUD ES-SAYYID
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER