Date: 20010321
Docket: IMM-1100-01
Neutral Citation: 2001 FCT 208
Ottawa, Ontario, this 21st day of March 2001
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN :
DAVINDER SINGH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PELLETIER J.
[1] This is an edited version of the decision I rendered orally at the conclusion of the hearing of this matter. The reasons have been edited for form and readability.
[2] This is my decision in the application for a stay of removal which is essentially based upon an allegation that the Minister has agreed to reconsider the applicant's humanitarian and compassionate application ("H & C application") which was rejected as was the application for judicial review of the decision.
[3] The affidavit of Jonathan Otis reports that the applicant says that during the hearing of a mandamus application in respect of another proceeding, counsel for the Department of Citizenship and Immigration (the "Department") advised the Court that the Department had agreed to reconsider the applicant's H & C application on the basis that the criminal conviction entered against the applicant for sexual assault had been quashed.
[4] The evidence is that the Department does not normally reconsider H & C applications unless there has been an error on the Department's part. The circumstances which are alleged here would not fall within that exception. There is nothing in the documentation produced to me from the Department which indicates that it had agreed to reconsider the application. Finally, Ms. Logsetty who appeared as counsel in the proceeding in which these representations were said to have been made, advises the Court that she did not make any such representations.
[5] In the circumstances, I find that no such representation was made. The reference in Justice Lemieux's decision to such a representation is puzzling but having regard to Ms. Logsetty's advice to the Court as an officer of the Court that she made no such representations, I am satisfied that none were made. If that is the case, then the question of the adequacy of the risk assessment simply does not arise. The risk assessment in issue here was undertaken prior to the decision of the Court of Appeal in Haghighi v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 407, [2000] F.C.J. No. 854. That decision does not have retroactive effect and therefore I am satisfied that the applicant's removal would not contravene the duty of fairness. As a result, there is no serious issue to be tried.
[6] However, I am not entirely satisfied that even if I found that there was an agreement to reconsider, it would preclude the applicant's removal. It is said that the decision in Haghighi, supra, applies because in Haghighi, the applicant did not have disclosed to him the post determination officer's report for the purpose of allowing him to comment. It is said that in this case, and I do not believe is disputed, the applicant did not have access to the Post Claim Determination Officer's (PCDO) risk assessment at the time when the original H & C was refused. If the H & C were to be reconsidered, Haghighi would apply and the applicant would have to be given the PCDO's report and the opportunity to comment on it. However, the fact that a different process would apply with regard to the reconsideration does not mean that the original risk assessment itself is invalid. It was conducted in accordance with the law as it stood at the time and in the absence of some reason to believe that the risk assessment cannot be relied upon, it is my view that it would continue to be a valid risk assessment even though in reconsideration a different procedure would apply.
[7] So for those reasons, first, that there was no agreement to reconsider and second, that even if there was, it would not invalidate the risk assessment which was done. I find no serious issue and therefore no ground to intervene.
[8] The application for a stay will therefore be dismissed.
"J.D. Denis Pelletier"
Judge