Date: 20011031
Docket: IMM-4918-01
Neutral citation: 2001 FCT 1172
BETWEEN:
IBRAHIM HUSSEIN
Applicant
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant's application for a stay of removal from Canada, scheduled for October 27, 2001, was heard on an urgent basis by telephone conference on October 26, 2001, two days after a similar motion by the same applicant was heard and dismissed by my colleague Mr. Justice Dubé, on October 24, 2001.
[2] The applicant, claiming citizenship in Somalia where he lived to age seven, had lived in Saudi Arabia for ten years before he and his family were forced to leave. He lived briefly in Ethiopia before coming to Canada in 1996 when he was 17 years of age. He claimed refugee status on his arrival.
[3] His refugee claim was denied in April, 1997. He had no identity documents. He spoke Arabic but did not speak the languages of Somalia. From 1997 to June, 2001 the applicant lived in Vancouver, whence he moved east to Toronto with his wife-to-be, a Canadian citizen, whom he married on August 10, 2001.
[4] On September 5, 2001 the applicant was arrested in Toronto on an immigration warrant and subsequently released on a bond to ensure his compliance with terms for his subsequent appearance. On October 11, 2001 he was called for an interview which was rescheduled to October 17, 2001. At that interview he was issued a direction to report for removal on October 27, 2001, bound for Mogadishu, Somalia.
[5] At the time his application for a stay was heard on October 24, 2001, there was filed an application for leave and for judicial review of the decision of the removal officer not to postpone the applicant's removal from Canada before completion of an up-to-date risk assessment if he were to return to Somalia.
[6] When that application for a stay was heard by telephone, Mr. Justice Dubé dismissed the application, noting that the applicant's claim for refugee status had been denied, that in October, 1998 a post claim determination officer determined the applicant would not face an objectively identifiable risk if he were returned to Somalia, and in October, 1999 his application for remaining in Canada on humanitarian and compassionate grounds was denied. In addition, Dubé J. found that the enforcement officer properly exercised her discretion not to defer removal on "an eleventh hour allegation of risk involved in the applicant's return to Somalia". Clearly, Dubé J. found there was no serious issue raised by the application for a stay, and implicitly no irreparable harm was established.
[7] When, two days later, I heard the second application for a stay the applicant had filed a second application for leave and judicial review, this time seeking a declaration that s. 48 of the Immigration Act, providing for execution of a removal order as soon as possible, or enforcement of it, was contrary to rights assured to the applicant by the Charter, in particular ss. 7 and 12, when no up-to-date risk assessment had been conducted. The applicant's record before the Court was essentially that which had been before Mr. Justice Dubé, except for the underlying application for leave and for judicial review, second affidavits by the applicant and his wife each appending an affidavit previously filed which had been before Mr. Justice Dubé, a copy of the CRDD decision rejecting the applicant's application for refugee status, and a letter from the Somalia Immigrant Womens' Association in Toronto, in support of the applicant's application and of his views of risk he would face if he were to return to Somalia.
[8] I dismissed the application for a stay. In my opinion, the principle of res judicata is here applicable. The evidence before me was essentially the same as that before Mr. Justice Dubé and no new evidence, in the sense of evidence that became available only after the matter had been heard by him, was provided to me. Moreover, while the second application was based on a perceived Charter issue it did not raise an issue that could not have been raised two days before at the hearing before Dubé J. In the circumstances, the principle of res judicata and the importance of recognizing the finality of judicial decisions supports a determination to dismiss the application for a stay.
[9] Even if I were to consider the matter on its merits, out of judicial comity I would not reach a different conclusion than that reached by Mr. Justice Dubé, unless I were convinced that he was clearly wrong on the basis of the evidence before him. Before the second application was heard, notice of an appeal of the decision of Dubé J. was submitted to the Court of Appeal. It was not argued before me that he was in error, except implicitly by his upholding the removal officer's decision as a proper exercise of discretion. It was not argued that Dubé J. applied an inappropriate standard of review. I find no basis to reach a different result.
[10] The Charter argument raised before me cannot be considered a new issue, despite submissions of counsel that it became clear only after the first application for a stay was dismissed. It did not, in the circumstances of this case, establish a serious issue. Moreover, since a risk assessment had been completed in accord with the Act albeit some three years ago, the evidence before the removal officer from other published sources about risk generally in Somalia, was not such that it could be said that the removal officer's decision not to postpone removal was patently unreasonable, or that in upholding that decision Mr. Justice Dubé was clearly wrong.
[11] In my opinion, apart from the principle of res judicata, in the second application for a stay of the applicant's removal no serious issue was before the Court by reason of the underlying application for leave and for judicial review.
Conclusion
[12] For the reasons set out, after hearing counsel for the parties the application was orally dismissed, subsequently confirmed by written order, for reasons then delivered orally and hereby confirmed.
(signed) W. Andrew MacKay
____________________________
JUDGE
OTTAWA, Ontario
October 31, 2001.
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