Date: 19980703
Docket: IMM-2999-98
BETWEEN:
LEON WHITE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.:
[1] These are brief reasons why I dismissed an application for a stay of execution of a removal order made against the applicant.
[2] The applicant's motion for a stay, filed on June 18, was set down for a hearing on June 22, 1998, a regular motions day in Toronto. When the matter came on for hearing, counsel for the respondent moved to dismiss the application principally because it was said that the issue raised in the applicant's application for leave and for judicial review, filed with the stay application, raised no new issue, indeed, the matter was said to be res judicata. Counsel for respondent indicated that she was informed that the applicant had previously filed an application for leave and for judicial review, concerning the same decision on behalf of the Minister, made pursuant to s-s 70(5) of the Immigration Act, as the second application for leave and for judicial review now sought to raise.
[3] This background was said to be unknown to counsel for the applicant. The applicant having been directed to report to the Immigration Centre in Mississauga was now there held awaiting removal though no date had been set for his removal. Counsel asked for an adjournment so the matter could be reviewed. Arrangements were made for the application for a stay to be heard by telephone on June 25, 1998. Following that hearing, when counsel for the applicant and for the respondent made submissions to me, I dismissed the application for reasons then orally outlined, and here confirmed.
Background
[4] The applicant is almost thirty years old. He was born in Jamaica and came to Canada on an immigrant visa at age 12. He resided in Toronto with his family and step-mother and siblings and completed grade 12 at a local high school.
[5] From 1988 to 1993 he was convicted of a number of offences, including dangerous operation of a motor vehicle, possession of property obtained by crime, break and enter, attempting to obstruct justice, and importing a narcotic. The last of these offences, the most serious, resulted in a sentence of 18 months of which he served some 6 months before he was paroled.
[6] In March 1994, shortly after he was granted parole, an immigration inquiry was conducted. He was found to be a person described in subsection 27(1)(d)(i) and was ordered deported pursuant to subsection 32(2) of the Immigration Act. On that day, he filed an appeal to the Immigration and Refugee Board, Appeal Division.
[7] In April 1995, he was notified that his appeal was considered abandoned by reason of his failure to attend a hearing. He had not been advised of the hearing since the only notice to appear had been sent to a law student who had appeared on his behalf at the immigration inquiry more than a year before and the notice had not reached the applicant. He applied to the Appeal Division and was granted a second opportunity for hearing his appeal when the circumstances were made known. When this was done, he was advised that immigration authorities would not remove him from Canada pending the hearing, though they had earlier indicated they would seek to do so in May 1995.
[8] Before his appeal was heard, the applicant was advised by letter dated November 8 that the Minister was contemplating whether to issue an opinion that he constituted a danger to the public in Canada, pursuant to s-s 70(5) of the Act. By letter of January 4, 1996, he was advised that the Minister had formed such an opinion, that he did constitute a danger to the public in Canada.
[9] While he did not acknowledge the fact in his affidavit in support of his application for a stay and his recently filed application for leave and for judicial review, the applicant had earlier filed, under the name Leon Anthony White, an application for leave and for judicial review (Court file IMM-173-96) in which the decision sought to be reviewed was that of the Minister made pursuant to s-s 70(5) of the Act. That application was said to be based upon sections 7 and 15 of the Charter of Rights. On April 24, 1996, one of my colleagues, Madam Justice McGillis, dismissed that application for leave.
[10] When the matter was heard by telephone, there was no longer any doubt that it was the same person applying by a second application for leave and judicial review, to have reviewed essentially the same decision of the Minister. In the later application, the decision questioned is described somewhat differently as "a decision of the Adjudication Division of the Immigration and Refugee Board (the tribunal) to consider and issue an opinion that the applicant is a danger to the public in Canada". While that appears to relate to a different decision, in fact, it is simply a preliminary decision to make a recommendation to the Minister and the only effective decision now subject to question is that of the Minister or made on her behalf pursuant to s-s 70(5).
[11] In these circumstances, counsel for the respondent urged that the matter was res judicata and that the application for a stay should be dismissed. Counsel for the applicant urged that the grounds for the second application for judicial review, filed in June of 1998, are different from those included in the first application, that the constitutional issues then raised are not repeated, and that the issues now raised concern the fairness of the process followed by officers of the Minister's staff, a matter not raised at all in the earlier application. Counsel for the applicant, who was new and had not been involved in the first application urged that the matter was not subject to the principle of res judicata even though it was acknowledged that the facts of the situation which gave rise to both applications for judicial review were essentially the same and that the matter was not being argued on the basis of new facts.
[12] In my view, the later application for leave and for judicial review is subject to the principle of res judicata as applied in its general sense to preclude repeating opportunities for issues to be raised one at a time, all in relation to the same facts. However, since the matter of the application for leave and for judicial review is not before me, I invited counsel to address the usual test for an application for a stay.
[13] After hearing argument, I dismissed the application because:
| (1) I was not convinced that there was a serious issue before the Court raised by the application for leave and for judicial review. If the matter were not one already precluded from consideration by the principle of res judicata, in my view the issue raised which relates to alleged unfairness arising from the timing of the decision to consider the applicant pursuant to s-s 70(5) is not a serious issue in light of the decision of the Court of Appeal in Williams v. Minister of Citizenship & Immigration, [1997] 2 F.C. 646 (F.C.A.). |
| (2) I was not persuaded that irreparable harm was established on the basis of the evidence before me. That evidence includes reference to the applicant's expectation that he will suffer severe emotional distress from being separated from his wife and three children, ages 7, 5 and 3, all of whom rely heavily on his income from employment in construction work. He has lived with them and provided financial support for them since 1995. Though I invited counsel to consider what might be said about irreparable harm in the circumstances where that must relate to the period between now and consideration of any serious issue that may be before the Court, the only indication was that any interruption of the relationship between the applicant and his spouse and children, would constitute irreparable harm. I simply was not satisfied that the evidence before me demonstrated irreparable harm would be occasioned if the applicant were now removed from Canada though his application for leave and for judicial review remains outstanding and may be determined without undue delay, provided the application is duly perfected, even in his absence from Canada. |
[14] Like many other cases, the circumstances here do raise considerations of a humanitarian and compassionate nature, in particular the circumstances that may affect infant children but those circumstances are not really set out in evidence here. They are matters for consideration of the Minister and her officers.
[15] For these reasons the application for a stay of the removal order, issued to the applicant, was dismissed.
W. Andrew MacKay
Judge
Ottawa, Ontario
July 3, 1998