Date: 19980723
Docket: IMM-2511-98
BETWEEN:
ESHO YOUSIF
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM J.:
INTRODUCTION
[1] The applicant is bringing a motion for prohibition and injunction of an immigration adjudication inquiry pending an application for leave and judicial review.
FACTS
[2] The applicant is presently the subject of an immigration inquiry which is set to recommence on July 27, 1998. It is alleged that the applicant is a member of an inadmissible class because he was convicted of offences in the United States of America which, if committed in Canada, would be punishable by ten years imprisonment or more and that the applicant is a fugitive facing a charge of murder in the first degree in the State of Illinois. This offence is punishable by death in the event of a conviction.
[3] In addition, there is an extradition proceeding pending against the applicant which has been set for September 3 and 4, 1998. The basis for the extradition is a request from the State of Illinois to have the applicant extradited to face the charge of first degree murder. Under Canadian extradition law, the Minister may seek an assurance that the person would not be returned to another State unless that State guarantees that the death penalty would not be sought, or if it was imposed it would not be carried out. The applicant submits that there is no equivalent protection under the Immigration Act.
[4] On May 22, 1998, the applicant filed a Notice of Application for Leave and for Judicial Review to prohibit the Minister and the Immigration and Refugee Board (Adjudication Division) from continuing with this inquiry. The applicant seeks to prohibit the inquiry on the basis that it constitutes an abuse of process and, effectively, double jeopardy.
[5] The adjudicator has refused to adjourn the inquiry pending the decision of this Court on the application for leave and judicial review.
SUBMISSIONS
1. The Applicant's Submissions
[6] The applicant submits that if the inquiry proceeds to a determination, any decision by this Court on the application for leave and judicial review could be rendered moot and the applicant may face deportation to a possible sentence of death without having had the opportunity to argue the merits of the application.
[7] The applicant submits that the Court has jurisdiction to issue an interim order of prohibition against a Federal Board, Commission or other body pending the decision of this Court to grant leave for judicial review. The applicant argues that prohibition, or an injunction, will lie to prevent a Board, Commission or Tribunal from engaging in a process which amounts to a denial of natural justice, an abuse of process or an infringement of a party's constitutional rights.
[8] The applicant submits that he has shown that a serious issue has been raised concerning abuse of process and the balance of convenience favours the applicant because the consequences of an adverse decision in the Immigration inquiry could be irreparable.
2. The Respondent's Submissions
[9] The respondent submits that the first inquiry pursuant to section 27 of the Immigration Act, R.S.C. 1985, c. I-2, had been adjourned several times and had never been fully litigated. The respondent argues that no decision had ever been made to determine whether the applicant was an individual described in subparagraphs 19(1)(c.1)(i), 19(1)(c.1)(ii) and 19(2)(a.1)(i) of the Immigration Act. The respondent states that the inquiry was terminated for reasons other than the purpose for which the inquiry was commenced. Therefore, the respondent submits that the principle of res judicata and double jeopardy does not apply.
[10] In the alternative, the respondent contends that section 34 of the Immigration Act applies:
| 34. No decision given under this Act prevents the holding of a further inquiry by reason of the making of another report under paragraph 20(1)(a) or subsection 27(1) or (2) or by reason of arrest and detention for an inquiry pursuant to section 103. |
34. Les décisions rendues en application de la présente loi n'ont pas pour effet d'interdire la tenue d'une autre enquête par suite d'un autre rapport fait en vertu de l'alinéa 20(1)a) ou des paragraphes 27(1) ou (2) ou par suite d'une arrestation et d'une garde effectuées à cette fin en vertu de l'article 103. |
[11] The respondent submits that judicial interpretation of section 34 of the Immigration Act holds that this section excludes the principle of res judicata for all practical purposes in the specific context of the sections to which it refers. Since both the first and the second inquiry on the applicant are held pursuant to paragraph 27(2)(a), the respondent submits that it has the jurisdiction under section 34 of the Immigration Act to conduct the second inquiry on the applicant.
[12] Moreover, the respondent submits that this Court has determined that holding a second inquiry pursuant to section 27 of the Immigration Act which is based upon the same facts as the first inquiry does not constitute an abuse of process. Therefore, the respondent argues that it is not an abuse of process to hold a second inquiry on the applicant.
[13] Furthermore, the respondent contends that inquiries pursuant to section 27 of the Immigration Act and extradition proceedings may occur simultaneously and there is no reason one proceeding should be delayed or prohibited for the other.
[14] Thus, the respondent submits that the applicant has failed to show that there is a serious issue to be tried.
[15] The respondent's second submission is that the applicant has provided no evidence that he would suffer irreparable harm if the adjudication inquiry should take place before the extradition hearing.
[16] The respondent's third submission is that the balance of convenience favours the Minister. The respondent argues that the public interest is to be taken into account when considering the balance of convenience and weighed with the interests of private litigants. The respondent submits that the balance of any inconvenience that the applicant may suffer does not outweigh the public interest the respondent seeks to maintain in the application of the Immigration Act, specifically subsection 27(6) of the Immigration Act which reads:
| 27. (6) A senior immigration officer shall cause an inquiry to be held concerning a person as soon as is reasonably practicable where the senior immigration officer receives a direction made pursuant to paragraph (3)(b). |
(6) L'agent principal est tenu de faire procéder à une enquête, dès que les circonstances le permettent, lorsqu'il en reçoit l'ordre conformément à l'alinéa (3)b). |
[17] Finally, the respondent submits that prohibition can only be issued if the decision maker has acted beyond his or her jurisdiction or acted contrary to the law. The respondent submits that the applicant has not shown that the respondent has acted beyond its jurisdiction, particularly since the respondent has jurisdiction to conduct a further inquiry pursuant to section 34 of the Immigration Act. Therefore, the respondent submits that the relief of prohibition should not be granted.
DISCUSSION
[18] First, I will deal with the applicant's request for a writ of prohibition. In Blanusa v. Canada (M.E.I.) (1989), 27 F.T.R. 107, Mr. Justice Strayer wrote at pages 107-8:
| This is an application for leave to apply for prohibition or an interlocutory injunction to prohibit the continuation of an inquiry under the Immigration Act concerning the possible deportation of the applicant, the purpose being to delay that hearing until the conclusion of the extradition proceedings which have been commenced against the applicant herein. ... Extradition proceedings have been commenced against the applicant by the State of California where the applicant has been charged with the kidnapping and murder of two persons. |
| The Present application is ill-conceived. This Court could only issue prohibition or an injunction against the continuation of the inquiry under the Immigration Act if it were satisfied that the adjudicator who has been designated to hold the deportation hearing were about to do something beyond his jurisdiction as being contrary to the law or to the constitution, including the Canadian Charter of Rights and Freedoms. The written outline of the argument of the applicant reveals no tenable contention of this nature. That argument is essentially to the effect that because there are grounds under the Extradition Act and the extradition Treaty with the United States upon which the applicant might resist extradition under those instruments, he cannot be proceeded against under the Immigration Act at this time. It is contended in effect that to proceed with the deportation hearing would automatically violate Section 7 of the Charter because the applicant will not be able to raise in it objections to his removal from Canada which are by their nature only pertinent to, and available in, extradition proceedings. |
| What is involved instead are two completely separate processes. The applicant is being proceeded against under the Immigration Act because he has allegedly violated the laws of Canada by the circumstances of his entry and of his staying in this country for over two years. He is being proceeded against under the Extradition Act and Treaty because he has allegedly violated the laws of the United States. The applicant is trying to turn any potential defences he may or may not have to avoid his extradition to California into a universal right to dwell in Canada. The distinction between the two kinds of processes has been emphasized, if emphasis were needed, in MacDonald et al. v. Kindler, [1987] 3 F.C. 344 (C.A.). The only matter relevant for this Court to consider in the proposed application under Section 18 of the Federal Court Act would be the scope and conduct of the Immigration Act deportation hearing. There is no basis demonstrated for thinking that that hearing is to be conducted in an illegal or unconstitutional way. If it is, there will be other remedies available at the appropriate time. |
[19] I have no evidence that the decision maker has gone beyond his or her jurisdiction or acted contrary to the law, I do not see how the relief of prohibition could be granted in this case.
[20] Turning to the applicant's alternative request for an injunction, I note that in R.J.R. MacDonald Inc. v. Canada (A.G.), 111 D.L.R. (4th) 385, the Court established a tri-partite test for determining whether interlocutory injunctions should be granted pending a determination of the case on its merits (at page 400):
| First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined |
| whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits. |
[21] The Court in R.J.R. MacDonald, supra, discussed the appropriate procedure for a court to apply when determining whether there is a serious question to be tried (at pages 402-3):
| What then are the indicators of "a serious question to be tried"? There are no specific requirements which must be met in order to satisfy this test. The threshold is a low one. The judge on the application must make a preliminary assessment of the merits of the case. |
| ... |
| Once satisfied that the application is neither vexatious nor frivolous, the motions judge should proceed to consider the second and third tests, even if of the opinion that the plaintiff is unlikely to succeed at trial. A prolonged examination of the merits is generally neither necessary nor desirable. |
[22] No decision was made after the first inquiry was started. After the start of the first inquiry and after some evidence was made, the respondent asked for the withdrawal of the direction for the inquiry.
[23] This was done, I believe, because of the commencement of proceedings in extradition in the Ontario Court of Justice (General Division) and, it appears, that this proceeding, extradition, takes priority to the Immigration Inquiry (see exhibit "J" of the affidavit of Mary Jarrell).
[24] In that no decision, other then to terminate the first inquiry was made, and this for the above stated reason, I am satisfied that the applicant is not facing double jeopardy.
[25] I am also satisfied that it is apparent that by the commencement of a "second" inquiry after the withdrawal and termination of the first inquiry is not, in the present circumstances an abuse of process.
[26] All that is now taking place is an inquiry pursuant to sections 27(1) and (2) of the Immigration Act which, I am satisfied is permitted pursuant to section 34 of the Immigration Act.
[27] Moreover, given the quoted paragraph in Blanusa, supra, it is clear that the multiplicity of proceedings, inquiry and extradition, does not constitute an abuse of process.
[28] As I have stated, the holding of a "second" inquiry in itself does not constitute an abuse of process nor does it constitute an abuse of process considering or taking into account the issue of extradition proceedings.
[29] Therefore, I am satisfied that the applicant has failed to show an arguable case. This is so even if the threshold to show an arguable case is very low.
[30] Turning to the second part of the test, irreparable harm was discussed in R.J.R. MacDonald, supra, as follows (at page 405):
| At this stage the only issue to be decided is whether a refusal to grant relief could so adversely affect the applicants' own interests that the harm could not be remedied if the eventual decision on the merits does not accord with the result of the interlocutory application. |
| "Irreparable" refers to the nature of the harm suffered rather than its magnitude. It is harm which either cannot be quantified in monetary terms or which cannot be cured, usually because one party cannot collect damages from the other. |
[31] I am satisfied that the evidence of irreparable harm in the case before me is purely speculative (see Syntex v. Novopharm Ltd (1991) 36 C.P.R. (3d) 129 F.C.A.)). I have no evidence as to what may happen to the applicant if and when it may be decided that the applicant should be removed from Canada to the United States.
[32] Furthermore, I am satisfied that the mere continuation of the Immigration Inquiry and the result from same, even if the decision results in the issue of a deportation order, is not irreparable harm.
[33] Being removed from Canada, in itself, as a result of being illegally in Canada is not irreparable harm.
[34] In the applicant's case, he may be able to show that if he is to be removed to the United States to face a murder charge where he may be subject to execution, that he would be subject to irreparable harm and then a stay of deportation, at that time may be allowed.
[35] That is not the situation that I must decide at the present time.
[36] In that I am satisfied that the applicant has failed to show an arguable case and that he would be subject to irreparable harm, I need not discuss the issue of balance of convenience.
[37] The application for a writ of prohibition and for injunction is denied.
"Max M. Teitelbam" J.C.F.C.
OTTAWA, Ontario