BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] By motion filed the 21st of October, 2005, and heard the 14th of November, 2005, the Applicant seeks an order suspending the proceeding before Puttaveeraiah Prabhakara, a member of the Refugee Protection Division (the "RPD") of the Immigration and Refugee Board, regarding the Applicant's refugee claim until such time as an Application for Leave and for Judicial Review underlying the motion is considered and fully determined.
[2] The underlying Application for Leave and for Judicial Review seeks leave and review of a decision of the RPD, dated the 5th of October, 2005, directing counsel for the Applicant to make submissions only on the merits of the Applicant's refugee claim by the 21st of October, 2005, and refusing to rule on any of the other issues raised by counsel for the Applicant in an application under Rule 44 of the Convention Refugee Determination Division Rules[1].
[3] The background to the motion before the Court follows.
[4] The Applicant was admitted to Canada on the 24th of January, 2003, on a six-month Canadian Visitor's Visa.
[5] On the 26th of January, 2004, the Immigration Division of the Immigration and Refugee Board conducted an admissibility hearing in respect of the Applicant. The Applicant was represented by counsel at the hearing.
[6] On the 25th of April, 2004, with the assistance of counsel, the Applicant submitted his Personal Information Form in relation to a claim made by him for Convention refugee protection.
[7] On the 13th of May, 2004, the Applicant was found to be inadmissible to Canada for serious criminality of which he was alleged to have been convicted in his country of nationality. On the 31st of May, 2004, the Applicant sought leave to review the inadmissibility finding. On the 26th of July, 2004, the Applicant's Application for Leave and for Judicial Review was dismissed on the basis that the Applicant had failed to perfect his application within the time provided.
[8] The Applicant's Convention refugee claim was scheduled for hearing on the 26th of July, 2004. At his request, the hearing was adjourned. The first day of hearing of the Applicant's Convention refugee claim, together with the claim of another person, took place on the 16th of March, 2005. Following a second day of hearing, the hearing was concluded with an agreement that the Applicant's then counsel who had represented the Applicant through both days of the hearing would make written submissions on the application by the 12th of August, 2005. The Refugee Protection Officer who took part in the hearing filed and served written submissions on the 24th of June, 2005.
[9] Some time in July, 2005, the Applicant retained new counsel. On the 28th of July, 2005, the Applicant through his new counsel, submitted an application in writing, pursuant to Rules 43 and 44 of the Refugee Protection Division Rules for the following orders:
1. That a date be set before the Division for the determination of the constitutional validity of section 98 of the Immigration and Refugee Protection Act...;
2. That copies of the tape recordings of the proceedings herein and their transcriptions be provided to applicant's counsel;
3. That, after the tape recordings and transcripts have been made available to the applicant's counsel, a date be set, if necessary, for the determination if all or any of the evidence, oral and/or documentary, be stricken from the herein proceeding;
4. That, after the tape recordings and transcripts have been made available to the applicant's counsel, a date be set for resumption or continuation of the herein proceeding, as the case may be, when the applicant be permitted to present evidence in full, oral and/or documentary, to support his claim;
5. That, after the determination of the manner in which the proceeding should continue or resume, a determination as to whether, in the interest of justice, the two claimants' claims should be dealt with separately;
6. That the applicant be permitted to make, through his counsel,, oral representations in support of his claim pursuant to Rule 60 of the [Refugee Protection Division Rules];
7. That the applicant's counsel be permitted to make oral representations before the Division with respect to the herein application and a date be set for this purpose; and
8. That the deadline for submission of written submissions to the Division by the applicant's counsel be postponed or cancelled, as the case may be, pending the determination of all of the issues listed above;
[10] In effect, new counsel for the Applicant sought that the Applicant's claim to Convention refugee status before the RPD be returned to the point of beginning notwithstanding the fact that the Applicant's hearing before the RPD had been closed. The grounds for the application were essentially alleged breaches of fairness and natural justice together with the new claim that section 98 of the Immigration and Refugee Protection Act[2] is unconstitutional "... due to its vagueness in defining the criteria (by adopting section F of Article 1 of the United Nations Convention Relating to the Status of Refugees) for Convention Refugee exclusion." Further, counsel urged that section 98 "...violates the right to life, liberty and security of the person of the applicant and his right not to be deprived thereof pursuant to section 7 of the Canadian Charter of Rights and Freedoms."[3]
[11] By letter dated the 5th of October, 2005, new counsel for the Applicant was advised by a Case Management Officer at the RPD that the member presiding at the Applicant's Convention refugee hearing had determined:
Your request for an oral hearing has been denied. You are asked to make written submissions just on the merits of this claim by October 21, 2005.
[12] In the result, on the 11th of October, 2005, new counsel for the Applicant filed the Application for Leave and for Judicial Review underlying the motion before the Court. In that Application for Leave and for Judicial Review, the Applicant seeks review of the decision of the member of the RPD presiding on his application for Convention refugee status above referred to. On the Application for Leave and for Judicial Review, the Applicant seeks the following relief:
1. That the [presiding] member be prohibited from continuing with the hearing and adjudication of the applicant's refugee claim;
2. That the constitutional issue regarding section 98 of the Immigration and Refugee Protection Act be determined by the Federal Court;
3. That the applicant's refugee claim be determined by way of a de novo hearing before another member of the Refugee Protection Division of the Immigration and Refugee Board; and
4. Such and other relief as to this Honourable Court may deem just [sic].
[13] Before the Court, counsel were in agreement that the motion before the Court was in the nature of a stay proceeding and that the well known tri-partite test reflected in R.J.R.-MacDonald Inc. v. Canada (Attorney General)[4] should apply. However, the foregoing being said, counsel for the Respondent urged that I should not hear the motion and in support of this submission he cited Zundel v. Canada(Human Rights Commission)[5] where Justice Sexton, for the Court, wrote at paragraph [16] of his reasons:
In oral argument, counsel for Mr. Zundel argued that had he waited until the Tribunal determined the merits of the complaint, subsection 18.1(2) [of the Federal Courts Act] ... would have deprived him of the ability to seek judicial review of the two rulings at issue in this appeal....
[citations omitted]
[14] After quoting subsection 18.1(2), Justice Sexton continued at paragraph [17] of his reasons:
In light of my conclusion that each and every ruling made by a tribunal in the course of its proceedings cannot be the subject of an application for judicial review, it follows that the word "decision" contained in subsection 18.1(2) cannot refer to every interlocutory decision a tribunal makes. A party against whom an interlocutory order has been made is not therefore under an obligation to immediately appeal in order to preserve his rights. In my view, the time period prescribed in subsection 18.1(2) of the Federal Court[s] Act does not begin to run until the final decision in the proceedings has been rendered. If the Tribunal's final decision is appealed, any objection to procedures taken during the hearing of the appeal can be raised at that time.
[15] Counsel for the Respondent also cited Szczecka v. Canada(Minister of Employment and Immigration)[6] where Justice Letourneau, for the Court, wrote at page 335 in respect of an application for judicial review of an interlocutory decision of the predecessor to the RPD:
This is why unless there are special circumstances, there should not be any appeal or immediate judicial review of an interlocutory judgment. Similarly, there will not be any basis for judicial review, especially immediate review, when at the end of the proceedings, some other appropriate remedy exists.
[emphasis added]
[16] Counsel for the Applicant urged that here "special circumstances" exist and in support of that submission, referred the Court to Howe v. Institute of Chartered Accountants of Ontario[7] where Justice Laskin, in dissent, wrote at page 503:
In Prousky v. Law Society of Upper Canada..., the Divisional Court dismissed an application for judicial review of an interlocutory ruling of the Law Society Discipline Committee and this Court refused leave on the sole ground that the application was premature: ...
[citations and some text omitted]
[17] Justice Laskin continued:
But where the ruling amounts to a breach of the tribunal's duty of fairness, or a breach of natural justice, then different considerations apply. A breach of natural justice amounts to or is akin to jurisdictional error; and in administrative law language, a tribunal which begins with jurisdiction to decide will lose jurisdiction or act in excess of its jurisdiction if, in the course of deciding, it breaches natural justice...
Where there is jurisdictional error arising from a breach of natural justice during the course of the proceedings, a court is entitled to intervene to correct the error though the party affected has a right of appeal. This was the central point of Dickson J.'s strong dissent in Harelkin v. University of Regina, ...
[citations omitted]
[18] Counsel for the Applicant urges that the interlocutory decision of the RPD that is sought to be reviewed reflects a jurisdictional error arising from a breach of natural justice during the course of the proceeding before it and that therefore this Court should intervene and, to preserve the status quo, should grant the stay of proceedings before the RPD that is now sought before the Court. Counsel urges that the fact situation before the Court is precisely the kind of "special circumstances" contemplated by Justice Letourneau in Szczecka, supra.
[19] Further, while counsel for the Applicant acknowledges that, while subsection 162(2) of the Immigration and Refugee Protection Act requires that the RPD, and other Divisions of the Immigration and Refugee Board, deal with proceedings before it "... as informally and quickly as the circumstances and the considerations of fairness and natural justice permit", here, considerations of fairness and natural justice simply do not permit the RPD to summarily, and without reasons, dispose of the Applicant's Rule 44 application before the RPD as was done here.
[20] Against the foregoing, I conclude that the Application for Leave and for Judicial Review underlying the motion for a stay now before the Court is ill-founded. The proceeding before the RPD is in its last stages. Two days of hearings were held. Written submissions by the Refugee Protection Officer were filed and served before the end of June, 2005. Written submissions on behalf of the Applicant were due in mid-August, 2005. No submissions were filed on behalf of the Applicant within the time provided. Further, no submissions were filed on behalf of the Applicant by his new counsel within the extended time provided by the RPD. All that remains to be done is for the RPD to render its decision. Following that decision, judicial review is available and I can identify no issue raised on behalf of the Applicant on his Rule 44 motion and on the Application for Leave and for Judicial Review underlying this motion that could not be raised on an Application for Leave and for Judicial Review of the final decision of the RPD. I am satisfied that it would not be in the interests of justice to delay that decision further.
[21] The Applicant exercised his right to change counsel at a very late stage in the proceeding before the RPD. Indeed, he had that right. But I conclude that he is not entitled, by reason of the exercise of that right, to seek to summarily return the proceeding before the RPD to the beginning. That result will, nonetheless, flow if, following the RPD's final decision, leave and judicial review is sought and the Applicant is successful on that Application.
[22] In the result, this motion for a stay of proceedings before the RPD will be dismissed without consideration of the tri-partite test for such a stay. That being said, if I were to turn to the tri-partite test, I would conclude that the Applicant has simply failed to establish that he would suffer irreparable harm through a failure to gain the stay that is sought.
[23] The issue of certification of a question that would allow for an appeal of my decision herein was not raised before me. I am satisfied that the issue of certification of a question simply does not arise on this motion for an injunction in the context of an application for leave and for judicial review of an interlocutory decision of the RPD.
[24] Counsel for the Respondent urged that, if the Respondent was successful on this motion, as he will be, special circumstances exist which would justify an order of costs in the Respondent's favour. Counsel for the Applicant urged that the relatively unique circumstances of this motion and the application for leave and for judicial review on which it is based are such that the general rule of no order as to costs should apply. In this regard, I favour the position of counsel for the Applicant. There will be no order as to costs.
JUDGE
Toronto, Ontario
November 17, 2005
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6133-05
STYLE OF CAUSE: XINZHI DENG
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 14, 2005
APPEARANCES:
Edward F. Hung FOR THE APPLICANT
SOLICITORS OF RECORD:
Edward F. Hung
Barrister and Solicitor
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
[1] SOR/93-45.
[2] S.C. 2001 c.27.
[3] Part 1 of the Constitution Act, 1982 (R.S.C. 1985, Appendix II, No.44), being Schedule B to the Canada Act 1982 (U.K.), 1982 c.11.
[4] [1994] 1 S.C.R. 311.
[5] [2000] 4 F.C. 255 (F.C.A.).
[6] (1993), 116 D.L.R. (4th) 333 (F.C.A.).
[7] (1994), 19 O.R. (3d) 483 (C.A.).