Kim v. Canada (Minister of Citizenship and Immigration), 2003 FCT 342

Date: 20030324

Docket: IMM-1839-03

Neutral citation: 2003 FCT 342

BETWEEN:

                                                                         JULIE KIM

                                                                                                                                                       Applicant

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

MacKAY J.:

        The applicant filed on March 18, 2003, an application for an Order to stay her deportation under an Order to report on March 19^th for removal from Canada, pursuant to a removal order that was not in question. The application was for an interlocutory order pending determination of an application for leave and judicial review of a decision by a removal officer who declined to postpone the applicant's scheduled departure.

[2]                 This was the second application for a stay concerning the applicant's removal. The first, to stay the removal ordered, was dismissed by my colleague Mr. Justice O'Reilly on March 17, 2003 (Court file no. IMM-1617-03).

[3]                 In written submissions relating to the second application, here dealt with, it was urged by the applicant that the matter was not subject to disposition under the principle of res judicata or issue estoppel, as the Court found in Raman v. Minister of Citizenship and Immigration, [1995] F.C.J. No. 1125 (T.D.) (QL) per Gibson J., and in Zolfigar v. Minister of Citizenship and Immigration, [1998] F.C.J. No. 1790 per Rothstein J. It is said the decision in question in the application for leave and for judicial review is different in this stay, and that while the irreparable harm here alleged, i.e. the loss of a fair opportunity for full consideration of an outstanding humanitarian and compassionate application for landing from within Canada, was also alleged in the first application, it was not dealt with by Mr. Justice O'Reilly. In dismissing the stay application in that case, the learned judge based his decision upon finding that a serious issue was not established.

[4]                 Because counsel for the applicant urged in written submissions that this application raised different issues than those before Mr. Justice O'Reilly and that this matter could not have been raised earlier since the removal officer's decision not to postpone the scheduled departure was not made until after Mr. Justice O'Reilly's decision, I directed the matter be heard at 3:00 p.m. by telephone conference and I then heard counsel for both parties.

[5]                 After hearing submissions of counsel, I orally dismissed the application for a stay for the following reasons which I now confirm in writing:

(1)        In my opinion, the second application for a stay, in essence in relation to the same matter, i.e. removal of the applicant as directed, was not a matter to be pursued for the principle of res judicata, in its broad sense, is applicable. Even though the decisions questioned by the underlying applications for judicial review are said to be different, they differ only in stages of arranging removal of the applicant. The irreparable harm here claimed was one aspect in relation to different irreparable harm alleged in the first application for a stay. The fact that it was not commented upon by Mr. Justice O'Reilly or that his decision was based on another ground, does not reopen the opportunity for reviewing the request to stay the applicant's removal. All aspects of the claimant's case are to be raised at the first opportunity, as they were in the application heard by O'Reilly J., and whether or not they are determined then, a second proceeding on the same general facts and in essence with respect to the same process, is unwarranted.

(2)        In this case, the affidavit evidence in support of the application for a stay, by an assistant to counsel for the applicant, set out fully the circumstances of the request for delaying removal arrangements, the delay in obtaining a response, and the refusal to defer determined only on March 18^th. There was no evidence of the applicant about a serious issue before the Court, or about irreparable harm or about the balance of convenience. The Court was invited, in effect, to infer facts on those critical issues from exhibits appended to the affidavit, exhibits which at best were hearsay, and no case was made out in terms of necessity and reliability for such evidence to be admitted. In my opinion, there was no basis in evidence before the Court concerning a serious issue, irreparable harm or the balance of convenience.

        Thus, I ordered the stay be dismissed. To confirm the order made orally at the conclusion of the hearing, it is hereby ordered:

                                                                            ORDER

The application for a stay of operation of the deportation order scheduled to be executed March 19, 2003, is dismissed.

(Sgd.) "W. Andrew MacKay"

Judge

Vancouver, B.C.

March 24, 2003

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                             IMM-1839-03

STYLE OF CAUSE:                           JULIE KIM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                     Toronto, ON

DATE OF HEARING:                       March 19, 2003

REASONS FOR ORDER AND ORDER:                           MacKAY J.

DATED:                                                                                       March 24, 2003

APPEARANCES:

Mr. Gregory James                                                                         FOR APPLICANT

Mr. John Loncar                                                                             FOR RESPONDENT

SOLICITORS OF RECORD:

Gregory James

Mamann & Associates

74 Victoria Street, Suite 303

Toronto, ON    M5C 2A5                                                              FOR APPLICANT

Morris Rosenberg

Deputy Attorney General of Canada

Department of Justice, Ontario Regional Office

The Exchange Tower, 130 King Street West

Suite 3400, Box 36

Toronto, ON    M5X 1K6                                                              FOR RESPONDENT